Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ

The Tribunal's Decision 39 The Tribunal's decision was delivered on 6 March 2002. The Tribunal member set out the various claims made by the respondent and the evidence relied upon in support of those claims. Reference was also made to the adviser's submissions. In this respect the Tribunal said: 'The applicant's adviser made some oral and written submissions. She said that the applicant is not educated and finds it hard to express himself and give reasons. She indicated that his type of music is prohibited. In her written submissions she covers matters relating to Christianity, his claimed arrests and the anticlerical recording. She claims that some of the country information that I had sent the applicant was not accurate. She talks of a singer called Gogosh who was permitted to tour Iran to do fundraisers for the President's election campaign.' 40 The Tribunal referred to country information including country information relating to attitudes towards musical performances in Iran. In that section of his reasons he reproduced the extract from the Report of the Research Directorate of the Immigration and Refugee Board in Ottawa which referred to the concert by the singer Homa. He then turned to his findings and the reasons for them. 41 The Tribunal member said he did not find the respondent to be a credible witness. Much of his evidence was vague and uncertain. He accepted that he was a door and window maker from Iran and that, as first claimed, he left Iran because he liked singing and he had been arrested while singing at a wedding. The Tribunal member did not accept that singing was considered against the revolution in the way claimed by the respondent although he accepted country information indicating that there were restrictions on some types of musical activity and some events in Iran. He did not accept that the respondent faced the harm he now claimed as many of his claims were inconsistent with the country information. 42 The Tribunal member rejected the applicant's claim that in early 2000 his house was ransacked and that authorities had taken tapes and movies including the copy of the anticlerical songs he had recorded. He also rejected the claim that the respondent's friend had confessed under torture that the respondent was the singer on the tape and that a summons had been issued for his arrest. 43 The Tribunal member appeared to reject this aspect of the respondent's claim on the basis that it was not mentioned at his initial interview. He did not accept the respondent's evidence that he was afraid the information would get back to authorities in Iran. Nor did he accept the respondent's claims of torture and harassment or that these events occurred in the manner he claimed. This was contrary to country information that had indicated that the approach to music was becoming more liberal. The Tribunal member found the respondent's description of events, like his court appearance and exile, to be vague and unrealistic. 44 The Tribunal member accepted that singers or entertainers could form a particular social group for the purposes of the Refugee Convention. But it was necessary to consider whether the respondent as a member of that social group had a well-founded fear of persecution because of his membership of it. The Tribunal member referred to the adviser's submission that the report of the Research Directorate at the Immigration and Refugee Board, Ottawa was inaccurate because she could not find a reference to the Homa concert mentioned in that report. The member said he had made further inquiries into the matter but for the purpose of the application it was not necessary to wait for a response. He said he would place no weight on this aspect of the Canadian country information. He did, however, accept that the sociologist referred to in the report spent the summer of 1998 in Iran and attended several weddings and receptions where musicians and groups were performing 'modern music'. He accepted that musicians performing 'modern music' were not targeted and not subject to ill-treatment by the security forces today in Iran as long as they did not perform in public. He also accepted that music such as rap and rock and roll is banned in Iran because the lyrics are considered offensive, but found that the respondent had never played that type of music. Even if the respondent had some difficulty as a result of his music, the Tribunal did not accept that it would now give rise to a fear of persecution for a Convention reason. The respondent had returned to his job after his release from exile. The member did not accept that the situation for singers or entertainers was as bleak as the respondent claimed as this was contrary to the country information which the Tribunal accepted. 45 The Tribunal member observed that there might be regional variations in the attitudes of local authorities to musicians. The respondent was not from Tehran but there was no reason why he could not go to live there if he felt he could express his music more freely there. He then dealt with the respondent's claims of conversion to Christianity. He was not satisfied that the respondent had engaged in his conversion to Christianity other than for the purpose of strengthening his claim for refugee status. The respondent appeared to be ambivalent about his new-found religion and gave no indication that he had any substantial understanding of it despite his claims that he had an interest and discussed it in Iran. The member observed that the respondent claimed that his religion was a personal one and did not accept that he would encounter harm if he practised it quietly. He would not encounter the difficulty faced by those who wished to proselytise as it appeared he had insufficient knowledge or enthusiasm to proselytise. 46 The Tribunal member was not satisfied that the use by the respondent of a Turkish passport to travel to Australia would give rise to a well-founded fear of persecution for a Convention reason. In this connection reference was made to independent country evidence relating to the position of failed asylum seekers upon return to Iran. 47 The member said that, having considered the evidence as a whole, he was not satisfied that the respondent was a person to whom Australia had protection obligations under the Convention. On that basis the Tribunal affirmed the decision not to grant a protection visa.

The Reasons for Decision in the Federal Magistrates Court 48 The respondent represented himself in the Federal Magistrates Court. He told the Court that he had been accused of lying several times by the Tribunal member and that he was hurt and nervous and had lost self reliance so that he could not express himself properly. He contended that the conclusions reached by the Tribunal from country information were wrong and inconsistent with that information. He also said that the Tribunal had misunderstood country information about the freedom of singers in Iran. 49 The respondent submitted to the Federal Magistrates Court that the Tribunal hearing had been procedurally unfair and that the presiding member was biased against him. His Honour was invited to listen to the tape recordings of the hearing conducted before the Tribunal. He agreed to do so and adjourned the proceedings for that purpose. He did not resume the hearing but instead invited written submissions from the parties. He also approved pro bono representation for the respondent to prepare written submissions and written submissions were subsequently filed by Ms Price on 2 September 2002. 50 His Honour observed that the matters raised in the original application for review and the written submissions prepared by the respondent could not be sustained. The application, as framed and elaborated upon in the written and oral submissions, failed to substantiate the allegation of bias. The allegation of procedural fairness could not assist the respondent in the face of s 474 of the Migration Act. The other matters raised amounted to no more than an invitation to the Court to exercise merits review. 51 Ms Price, however, had been permitted to file an amended application following her review of the tapes of the Tribunal hearing. The amended application raised a ground that the Tribunal had erred in failing to extend procedural fairness by a breach of the hearing rule and apprehended or actual bias. 52 The learned magistrate found that based on the submissions made by Ms Price and his own assessment of the audio record, there were issues of concern relating to the conduct of the hearing by the presiding member. He made the following points: 1. The hearing commenced at 10.40am Eastern Australian Summer time in Sydney but the respondent was required to attend by video link from the Port Hedland Detention Centre in Western Australia. The local time when the respondent was required to attend was 7.40am. The learned magistrate regarded it as highly unusual to expect a litigant to attend legal proceedings at such an hour. 2. The respondent initially had trouble hearing because of construction work taking place outside the room in which he was placed. However this proved to be only a temporary obstacle because the construction work ceased upon request. 3. At an early stage the respondent showed agitation. The Tribunal did offer the respondent an adjournment to another occasion but the respondent said he wished to proceed. 4. The hearing proceeded largely with the presiding member asking questions and the respondent answering them. When the respondent sought to address the presiding member at some length he was interrupted and told to answer questions rather than reciting what he had prepared. 5. There was an interruption to the hearing when the respondent became agitated following the member's challenge to his view of the oppression of musical performers in Iran. 6. The respondent was again interrupted by the presiding member when he strayed from issues that the presiding member wished to hear about. 7. The respondent was questioned in rather laborious detail, more akin to cross examination in adversarial proceedings. In particular he was told by the presiding member at one stage, when dealing with his religious beliefs just to answer 'yes' or 'no' in answer to his questions. 53 The learned magistrate referred to the Tribunal member's expressions of disbelief about the respondent's account. He described some of the exchanges between them. He referred to the adjournment which had occurred at 1.05pm for fifteen minutes as 'inexplicable' and said it was not apparent to him why the respondent felt the need to apologise upon the resumption of the hearing. It was not apparent to the learned magistrate that the respondent had done anything to apologise for. It was apparent to him from the audio record that the Tribunal member had become increasingly agitated by the respondent seeking to expand upon answers requested from him. 54 Although counsel for the respondent characterised the Tribunal member's manner as 'brusque, short, sharp, imperious at times, discourteous at times and lacking in any empathy or sensitivity to the task that he was undertaking', the learned magistrate did not accept that description. He described the manner of the Tribunal member as 'formal, reserved, somewhat rigid in his approach, and at one point, apparently irritated'. The learned magistrate did form the view from the audio record of the proceedings that the Tribunal member had a pre-determined view of the inquiries that he needed to make and was preparing himself a record of proceedings in accordance with the structure of the case that he had in mind. 55 After referring to submissions for the appellant the learned magistrate then discussed the decision of the Full Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 as to the proper construction of s 474 of the Migration Act. It is to be noted that the learned magistrate's decision preceded the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. His Honour concluded that it was open to the respondent, in the light of the decision in NAAV and the first instance decision of Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108, to argue that the decision of the Tribunal was vitiated on the following grounds: (a) a failure on the part of the RRT to make a bona fide attempt to exercise the powers conferred on it; and (b) a breach of an inviolable precondition to the exercise of power by the RRT contained in the Migration Act. His Honour then referred to s 420(2)b) of the Migration Act. He had previously held that provision to establish an inviolable precondition to the exercise of the Tribunal's power. In his opinion, the only basis upon which it was open to the respondent to disturb the decision of the Tribunal was if he could be satisfied that the manner in which the proceedings were conducted by the Tribunal member established either a breach of s 420(2)(b) of the Migration Act or a lack of a bona fide attempt to exercise the Tribunal's power. 56 The learned magistrate entered the disclaimer that a court exercising powers of judicial review should not adopt a 'precious attitude' when considering procedures followed by the Tribunal or the manner of the Tribunal member. Nevertheless, in his opinion, the audio record of the proceedings before the Tribunal established that they were unfair. He referred again to the time of commencement of the hearing which he found was 'almost guaranteed to place stress upon a litigant'. He referred to the fact that the respondent was 'placed in a room in which he initially could not hear properly because of construction noise' and concluded that it was little wonder that the respondent appeared agitated. Although the Tribunal member had given the respondent the opportunity to seek an adjournment, the respondent had elected to proceed. However, he was subsequently repeatedly interrupted and prevented by the presiding member from putting forward his case in his own way. The learned magistrate said: 'The RRT is an inquisitorial body and it is entitled to put questions to applicants, but it is necessary that applicants have a reasonable opportunity to present to the RRT that which they wish to present. The manner in which the presiding member conducted these proceedings contributed to the agitation of the applicant and inhibited him from presenting his case.' 57 The learned magistrate went on to observe that the member himself had become agitated when the respondent sought to press his submissions rather than giving simple answers to questions. He referred again to the inexplicable adjournment and the absence of anything to suggest from the audio record that the respondent was misbehaving. He observed that the Tribunal member had made a sarcastic reference to the respondent 'loving to talk' and repeatedly indicated that he wanted the respondent to keep his answers short. The presiding member, according to his Honour, wanted to confine the case to the preconceived structure that he had in mind, rather than the case that the respondent wanted to present. 58 The learned magistrate said: 'Taken individually, these issues may not be regarded as matters of major concern. Taken collectively, they establish to my satisfaction that the proceedings were procedurally unfair. The applicant was not given a fair hearing.' His Honour acknowledged that it was clear from the Full Federal Court decision in NAAV that procedural unfairness was not sufficient to invalidate a migration decision protected by the privative clause. He held that but for the privative clause he would have set aside the decision of the RRT on the basis of the procedural unfairness that he found. He could not do so because of the privative clause. In addition, he accepted that procedural unfairness, bias apart, did not establish a breach of s 420(2)(b) of the Migration Act. 59 As to bias, he concluded that a fair minded observer would derive from the audio record a reasonable apprehension that the Tribunal member would not bring an unprejudiced mind to bear upon the case. He was not satisfied that the respondent had established that the Tribunal member was in fact unable or unwilling to decide the case impartially. The evidence did not clearly demonstrate a closed mind. However the circumstances of the proceedings before the Tribunal were sufficient to establish a reasonable apprehension of bias. An appearance of bias, as opposed to actual bias, did not directly establish a lack of a bona fide attempt to exercise the power. In his Honour's opinion, however, a reasonable apprehension of bias was sufficient to establish a breach of s 420(2)(b). In this respect he relied upon his own decision in WADK v Minister for Immigration [2002] FMCA 175. 60 He concluded: 'In this case, the fact of the time of the commencement of the RRT proceedings, combined with the audio record, leads me to the view that the RRT did not follow the overarching principle required to be followed by s 420(2)(b) of the Migration Act in that the RRT did not act according to substantial justice in the conduct of those proceedings. The finding that I have made that there is a reasonable apprehension of bias in the conduct of those proceedings establishes the failure to afford substantial justice in accordance with s 420(2)(b). In my view, the failure to afford substantial justice amounts not only to a breach of an inviolable limitation upon the power conferred upon the RRT but also establishes a lack of a bona fide attempt to exercise that power. Accordingly, I will grant relief in the form of a declaration. I will give the parties liberty to apply should any further orders be required. I will hear the parties as to costs.' The Grounds of Appeal 61 The grounds of appeal as set out in the Notice of Appeal filed by the Minister on 28 November 2002 were as follows: '2. The learned Federal Magistrate erred in concluding that the hearing of the Refugee Review Tribunal was procedurally unfair. 3. The learned Federal Magistrate erred in concluding that the proceedings before the Refugee Review Tribunal established a reasonable apprehension of bias. 4. The learned Federal Magistrate erred in concluding that: (a) section 420(2)(b) of the Migration Act 1958 was an inviolable limitation on the exercise by the Refugee Review Tribunal of its power; (b) section 420(2)(b) created rights to the extent that a breach thereof removed the protection conferred by s 474. 5. The learned Federal Magistrate misdirected himself by equating a breach of s 420(2)(b) with a lack of bona fides.'

Statutory Framework - The Privative Clause 62 Section 474(2) of the Migration Act defines a class of decision called a 'privative clause' decision thus: 'In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).' The term 'decision' is defined broadly in s 474(3) and includes a reference to the grant or refusal of a visa. It also includes a decision on review of a decision. The operative subsection of s 474 is subs (1) which provides: '(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.' 63 Reference should also be made to s 420 of the Act which provides: '(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.'

Whether the Decision of the Tribunal was vitiated by Procedural Unfairness 64 The learned magistrate's decision proceeded upon the assumption that procedural fairness was precluded as a ground of review by reason of the operation of s 474 of the Migration Act as construed by the Full Federal Court in NAAV. That decision has been overtaken and effectively overruled by the decision of the High Court in Plaintiff S157/2002. 65 As set out by the Full Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359, Plaintiff S157 is authority for a number of propositions including the proposition that a decision which is flawed, by jurisdictional error, by reason of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act. What this means, in effect, is that procedural unfairness amounting to jurisdictional error is a basis upon which application may be made for the issue of a constitutional writ in the High Court under s 75(v) of the Constitution or relief in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). 66 The reliance placed upon s 420(2)(b) in the reasoning of the learned magistrate was highly questionable having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. This Court observed as much in its decision on appeal from the same magistrate in WADK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 48. For present purposes, however, the apparently erroneous application of s 420(2)(b) in this case appears to be irrelevant. The question, in the light of the decision of the High Court in Plaintiff S157, is whether there was, in the conduct of the hearing by the Tribunal, procedural unfairness which amounted to jurisdictional error. 67 In my respectful view, the learned magistrate was wrong to conclude that there was. 68 The fact that the Tribunal takes an inquisitorial approach to the hearing element of its review by putting questions to the applicant for review does not involve any breach of procedural fairness provided that the applicant is given a real opportunity to put his or her own case. It is to be borne in mind that the oral hearing before the Tribunal is not a judicial hearing. It is one element of a process which includes the lodgment of written submissions before and after the hearing. It may also involve, as it did in this case, specific notice of particular matters adverse to an applicant and upon which the applicant is invited to comment. There were submissions lodged by the respondent in advance of the hearing. The respondent was given the opportunity to answer questions put to him by the Tribunal at the hearing and in addition he and his adviser were given an opportunity at the end of the hearing to put anything further that they might want to add. That the Tribunal conducted the hearing on a question and answer basis directed to issues of concern to the Tribunal member did not deprive the process of procedural fairness. 69 There was no basis for contending that the commencement time of the hearing, 7.40am Western Standard Time, was unfair in terms of the ability of the respondent to answer questions or put his case. There was no submission to that effect. Nor did the respondent take up the offer of an adjournment to another day, albeit that was unrelated to the start time. 70 The construction noise was a distraction at the beginning of the hearing which ceased shortly after the hearing had begun and after the hearing officer spoke to whoever was operating the machinery outside the hearing room. No adjournment was sought because of it. 71 The Tribunal member did ask the respondent to look at the screen so that they could properly communicate visually and not talk over each other or the interpreter. In so doing he may have been more brusque and imperative than he needed to be. However, there is nothing to suggest that his conduct in this respect impaired the ability of the respondent to put his answers or say anything further that he wanted to say when invited to do so at the end of the hearing. 72 The reference by the Tribunal member to what friends, returning from Iran, had told him about musical performances in that country was, in one sense, unfortunate. There was no immediate answer which the respondent could give to that reference. The member's friends were not before the Tribunal nor was the content or context of their statements. However, it might be said that it was fairer that the Tribunal member disclose such information coming to him personally than keeping it to himself. It was clear that the attitude of the Iranian authorities to the performance of music in Iran was an issue of importance going to the credibility of the respondent. It was a matter which was the subject of country information and the subject of a subsequent letter by the Tribunal to the respondent giving him an opportunity to comment upon the Canadian report of 1998. There is nothing in the reasons to suggest that the member relied upon the information which he disclosed. He expressly disclaimed reliance upon the contentious issue whether there had been a major concert put on by an exiled Iranian singer in Teheran. 73 It is no doubt the case that Tribunal members will acquire information about the countries in respect of which they are hearing review applications in a variety of ways, not least by accumulation of repeated exposure to independent country information. The vice, if any, in the Tribunal member's reference to what his friends had told him, was the impression it could convey that this was particularly weighty information which affected his view of the respondent's credibility on the question. However, his reasons for decision read as a whole and the process he adopted after the hearing which included inviting further submissions from the respondent, do not support the conclusion that there was a reasonable apprehension of bias on his part. 74 A number of other matters arising out of the conduct of the hearing were referred to in the submissions put on behalf of the respondent. It was said that at one point when the Tribunal was dealing with an incident involving the respondent's arrest for singing and asked him what had happened on that occasion, the respondent started describing the events and said that he had been beaten up. At this point it was said a sound is heard on the tape as though the respondent was hitting his hand or some other part of his body. Counsel for the respondent submitted that he was demonstrating how he had been beaten. In doing so he first said, 'with permission of Mr White', seeking permission from the Tribunal member to do so. This, it was said, indicated that at that stage in the proceedings he had become submissive to the Tribunal member and hesitant that any action he took might provoke him. Other aspects of the conduct of the proceedings were said to demonstrate that the objective of the Tribunal member was only to explore the possibility that the respondent's arrests by Iranian authorities involved breaches of laws of general application, such as drug use, alcohol use or disturbing neighbours with excessive noises. It was also suggested that the Tribunal member had the objective of finding information that the respondent had failed to disclose at his arrival interview which could form the basis for an adverse credibility finding. The calling of the adjournment which the learned magistrate regarded as inexplicable, it was submitted, appeared to serve no other purpose than to ensure the respondent remained overborne and intimidated. Then it was said that exchanges later in the hearing indicated that the respondent was, in the very least, becoming overwhelmed by what had occurred during the hearing and by the continuing dissatisfaction of the Tribunal member with his answers to questions. 75 At the end of the hearing the Tribunal member heard from the respondent's adviser without the exchange being translated. He said that he wouldn't get this translated because the adviser could discuss it with the respondent. This procedure while not desirable, does not necessarily give rise to unfairness. There is nothing to suggest that it did in fact give rise to any practical unfairness in this case. 76 Submissions were also made to the effect that the respondent's adviser was a law student without extensive knowledge or background in Australian administrative and refugee law. It was said that she was probably young and her past experience had been largely in Iran where males dominate the power and decision-making structures and the legal system is unlikely to be as tolerant as the Australian system where objections and vigorous argument can be put to a decision-maker in support of a case. 77 There are, no doubt, many shortcomings in the processes of the Refugee Review Tribunal. It is however, an administrative decision-making process. It is not a court nor should it be confused with one. Overall, whether or not the investigation in relation to the merits of the case before the Tribunal was flawed, I cannot conclude that the procedural matters complained of amounted to either a breach of the fair hearing rule or would have supported a reasonable apprehension of bias on the part of the Tribunal member. It is to be remembered that a reasonable apprehension of bias involves a reasonable apprehension that the Tribunal member had a closed mind and was incapable of properly considering the respondent's claims. 78 The appeal should be allowed, the decision of the learned magistrate set aside and the application for review dismissed. I certify that the preceding seventy eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT LEE J: 79 This is an appeal from a decision of the Federal Magistrates Court in which the Magistrate (Driver FM) set aside a decision of the Refugee Review Tribunal ('the Tribunal') which affirmed a decision of a delegate of the appellant ('the Minister') that the respondent not be granted a 'protection visa'. 80 On 25 March 2001, the respondent, an Iranian national then aged 26, entered the Australian 'migration zone' whilst not the holder of a visa issued under the Migration Act 1958 (Cth) ('the Act'). Pursuant to ss 13 and 14 of the Act the respondent became an 'unlawful non-citizen' upon entry. Pursuant to ss 189 and 196 of the Act the respondent was taken to a place of 'immigration detention' and has been held in detention at all times thereafter. 81 On about 10 October 2001, the respondent applied for the grant of a protection visa as provided in s 36 of the Act. Pursuant to s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. As at 10 October 2001, s 36(2) of the Act provided the following criterion for a protection visa: 'A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' 82 In s 5 of the Act, 'Refugees Convention' and 'Refugees Protocol' (together referred to hereafter as 'the Convention') are defined respectively as: '… the Convention relating to the Status of Refugees done at Geneva on 28 July 1951' and: '… the Protocol relating to the Status of Refugees done at New York on 31 January 1967.' Australia is a 'Contracting State' under the Convention. The term 'protection obligations' is not defined in the Act and is not a term used in the Convention, but the clear intent of the Convention is to bind a Contracting State to deal with and protect a refugee in the manner required by the Convention. It was not argued, and is therefore unnecessary to consider, whether the period of incarceration imposed on the respondent met the terms of Art 31 of the Convention. (See: R v Uxbridge Magistrates' Court; Ex parte Adimi [2001] QB 667). 83 On 14 October 2001, the respondent was interviewed by a 'case officer' of the Minister's department, the delegate referred to above. On 12 November 2001, the delegate determined that the respondent not be granted a protection visa. 84 The respondent applied to the Tribunal for review of the delegate's decision. On 18 December 2001 the Tribunal held a hearing by video transmission to receive the evidence and submissions of the respondent. The respondent was at a Telecentre at Port Hedland and the Tribunal member, interpreter, and the respondent's adviser were situated at the Tribunal's premises in Sydney. As discussed later in these reasons, problems in the use of a video transmission system, which, it appeared, did not synchronise sound and vision and had limited visual display, became manifest in the course of the hearing. 85 On 6 March 2002, the Tribunal affirmed the delegate's decision. On 12 March 2002, the respondent filed an application in this Court to review the decision of the Tribunal. That application was transferred to the Federal Magistrates Court and heard by his Honour on 26 June 2002. The Minister was represented by counsel but the respondent appeared on his own behalf in that hearing. The respondent asserted that the hearing conducted by the Tribunal had been an unfair procedure and to support his claims he asked his Honour to listen to the audio recording of the proceeding. Apparently no video recording was made. After listening to the tapes his Honour directed that counsel acting 'pro bono publico' be appointed to represent the respondent and make written submissions on his behalf. Counsel so appointed filed an amended application which sought declarations and orders in the nature of certiorari and mandamus on grounds that the Tribunal had failed to carry out its function in a manner that was procedurally fair and on the ground that the Tribunal performed its function in a manner that could give rise to an apprehension of bias or, alternatively, was affected by actual bias. 86 After listening to the audio recording of the Tribunal's proceedings, his Honour was satisfied that the Tribunal proceedings were procedurally unfair but stated that he was bound by the decision of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 which had held that the 'privative clause' provisions of the Act immunised decisions of the Tribunal from judicial review on the ground of breach of the rules of procedural fairness. 87 His Honour went on to hold, however, that a fair minded observer would have derived from the audio recording a reasonable apprehension that the Tribunal would not bring an unprejudiced mind to bear on the case. His Honour did not find actual bias to have been established but held that apprehended bias constituted a breach of the duty imposed on the Tribunal by subs 420(2)(b) of the Act, namely, to 'act according to substantial justice and the merits of the case' and thereby a breach of the principles set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, making the 'privative clause decision' subject to judicial review. 88 Subsequent to his Honour's decision the High Court held in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, that a purported decision made in breach of the principles of natural justice was not a 'privative clause decision' within the meaning of subs 474(2) of the Act. It is unnecessary, therefore, to consider whether his Honour erred in finding a reasonable apprehension of bias to have been established or in concluding that the decision as a 'privative clause decision' was subject to judicial review by reason of that finding. 89 Havingregardto Plaintiff S157/2002 counsel for the respondent, who continued to provide services pro bono publico, gave notice that the respondent would contend in the appeal that his Honour erred in failing to find that the decision of the Tribunal was affected by jurisdictional error and was not a 'privative clause decision', in that the review conducted by the Tribunal lacked procedural fairness. 90 Part of his Honour's reasons for concluding that the review conducted by the Tribunal was procedurally unfair was his Honour's view that, in the absence of explanation, 7.40am was an inappropriate time to commence a review hearing and was a circumstance likely to have imposed unnecessary stress on the respondent. Although the time of commencement of the hearing was unusual it is to be remembered that for the respondent the hearing took place in mid-summer in Port Hedland, and in those conditions an early morning hearing may have been acceptable. 91 However, even if the foregoing circumstance should not have been included in the matters considered by his Honour, the other matters to which his Honour referred were sufficient to raise the question whether the review process conducted by the Tribunal lacked procedural fairness. 92 His Honour described as follows the impression he obtained from listening to the audio recording of the Tribunal hearing: '12. … Next, the hearing proceeded largely by the presiding member asking questions and the applicant responding to them. When the applicant sought to address the presiding member at some length the presiding member interrupted him, asking him to answer questions rather than reciting what he had prepared. Next, there was an interruption to the hearing when the applicant became agitated. This occurred when the presiding member challenged the applicant's view of the oppression of musical performers in Iran. The hearing resumed when the applicant apologised to the presiding member. Again, the applicant was interrupted by the presiding member when he strayed from issues that the presiding member wished to hear about. The presiding member indicated to the applicant that he wished to get information in the order that he wanted the information. The applicant was questioned in rather laborious detail, more akin to cross-examination in adversarial proceedings. In particular, the applicant was told by the presiding member at one stage, when dealing with his religious beliefs, just to answer "yes" or "no" in answer to his questions. 13. It is apparent from the audio record that the presiding member had difficulty accepting the truth of what he was being told by the applicant. In particular, the presiding member appeared to disbelieve what the applicant was saying about the time he spent in internal exile. The applicant had told the presiding member that he kept to himself while detained in internal exile and said little to other detainees that might have revealed the reasons why others had been exiled. The presiding member said at this point: You are making it unbelievable that you sat for one and a half months without talking, because it seems to me that you love to talk, all the time. I find it impossible to believe. The applicant responded: It wasn't that I wasn't talking - you asked me about their offences - I had not discussed … The presiding member intervened and said: Let's go back and clarify that - keep quiet for a minute and answer the questions rather than continue to talk. 14. I agree with the observation of Ms Price in her written submissions on page 8 that at this point the applicant has been speaking normally. The presiding member, suddenly and inexplicably, announced that he would adjourn for 10 minutes. The applicant attempted to say something further and the presiding member intervened again saying: If you want to behave properly we will continue with the hearing and if you don't then let your adviser know and we will stop the hearing. … At that time discuss with your adviser whether you want to continue today and behave in a civil manner or not. 15. The applicant then appeared to speak normally and the interpreter translated: He wants to continue giving answers. The presiding member responded: I don't want to listen to what you want to say - speak to your adviser first. 16. The hearing was then adjourned at 1.05pm and resumed at 1.20pm at which time the applicant again apologised to the presiding member. 17. It is not apparent to me why the applicant felt the need to apologise. He may have been advised to do so during the adjournment. It is not apparent to me from the audio record that the applicant had done anything to apologise for. It is apparent to me from the audio record that the presiding member had become increasingly agitated by the applicant seeking to expand upon answers that had been requested from him by the presiding member. The hearing then continued with the presiding member periodically interrupting the applicant as he responded to questions to ask him to keep his answers short or inviting him to shorten his responses. The hearing concluded at 2.05pm Australian Eastern Summer Time. 18. Ms Price describes the manner of the presiding member as "brusque, short, sharp, imperious at times, discourteous at times and lacking in any empathy or sensitivity to the task that he was undertaking". I do not accept that description. The presiding member was formal, reserved, somewhat rigid in his approach, and at one point, apparently irritated. Ms Price also notes, and I agree, that it seems that the presiding member was using a computer keyboard throughout the proceedings in order to note down the applicant's answers to his questions. I formed the view from the audio record of the proceedings that the presiding member had a pre-determined view of the enquiries that he needed to make, and was preparing himself a record of the proceedings in accordance with the structure of the case that he had in mind.' 93 His Honour accepted that the Tribunal was entitled to a reasonable degree of latitude in the conduct of inquisitorial proceedings and that a court exercising powers of judicial review should not adopt a precious attitude when considering the procedures followed by the Tribunal or the manner or style adopted by the presiding member. His Honour said, however, that the respondent was: '31. … repeatedly interrupted and prevented by the presiding member from putting forward his case in his own way. The RRT is an inquisitorial body and it is entitled to put questions to applicants, but it is necessary that applicants have a reasonable opportunity to present to the RRT that which they wish to present. The manner in which the presiding member conducted these proceedings contributed to the agitation of the applicant and inhibited him from presenting his case. 32. In addition, the presiding member himself became agitated when the applicant sought to press his submissions rather than giving simple answers to questions. The presiding member appeared to become irritated at one point and then adjourned proceedings until the presiding member was satisfied that the applicant would "behave himself". At that point, there is nothing to suggest from the audio record that the applicant was misbehaving. Nevertheless, the applicant seems to have felt compelled to apologise before the proceedings could resume. Also, the presiding member made a sarcastic reference to the applicant "loving to talk" and repeatedly indicated to the applicant that he wished the applicant to keep his responses short. The presiding member wanted to confine the case to the pre-conceived structure that he had in mind, rather than the case that the applicant wanted to present.' 94 His Honour stated that taken collectively the combination of circumstances presented a review process that was procedurally unfair, that is to say, the respondent was not given a fair hearing. 95 On the hearing of the appeal an unchecked transcription of the audio recording of the Tribunal hearing was handed up by counsel for the Minister. It was presented as an aid to the Court and not as evidence. After the hearing the Court listened to the audio recording in which some passages differed in some respects from the transcription document. 96 The impression obtained by his Honour was supported by the audio recording and the transcription, namely, that the manner and approach of the Tribunal member would have upset the respondent and deflected him from due presentation of his case. 97 In addition to the excerpts provided by his Honour, set out above, the following extracts from the audio record illustrate the point. Soon after the hearing began the following occurred: 'THE INTERPRETER: As I mentioned, when I was singing in wedding receptions, there was always a big crowd. It would get really crowded and that was the public like I say but I wouldn't, when I was singing in a wedding reception, I wasn't singing in a room, a school room or something full of people. TRIBUNAL: Okay. You seem rather agitated. Do you want me to just adjourn for 10 minutes while you compose yourself? THE INTERPRETER: I don't want to adjourn, thank you very much. TRIBUNAL: Well, why are you looking so agitated? THE INTERPRETER: Please, ask you - would you please ask your questions? TRIBUNAL: Well, you are behaving improperly, in my view. You look too anxious and if you are in a mood where you don't want to contribute to the hearing properly, then it is best that we put if off to another day, if that is what you want. ADVISER: Can I have water, please? (speaks to applicant) THE INTERPRETER: She said to be calm and answer questions.' 98 The Tribunal's assertion that the respondent was 'behaving improperly' and '[did not] want to contribute to the hearing properly' was extraordinary and the absence of justification therefor must have confused and distressed the respondent. 99 Shortly after that the following exchange took place after the respondent explained how he had begun singing at gatherings after being encouraged to do so by fellow soldiers in the course of his military service and how he had been arrested for performing as a singer at a wedding reception: 'TRIBUNAL: Okay, We will get to that later. It is better if you just answer the questions that I put to you rather than just say what you have prepared. So I'm still interested in your time in the army. Did you have any difficulties in the army apart from this? THE INTERPRETER: No I didn't have any problems. Singing is a sin in Islam. It is an offence. When my friends all sing and when someone is happy he wants to sing. But they don't want that, they want people just moan all the time or put their head under the mud and die, that is what they want. TRIBUNAL: Well, I had some friends who just recently came back from Iran and their reports are that there was quite a lot of music available in the shops, which you can hear from cars. There are many wedding parties where people are playing music. I think you are trying to give me a very old-fashioned view because the country information that I have read is consistent with what friends or colleagues who have come back from Iran have told me.' 100 By referring to information received from 'friends or colleagues' the Tribunal implied that information from such sources would be authoritative and sufficient to dispose of the respondent's claims. It was a confrontational approach by the Tribunal at an early stage of the proceeding. 101 The Tribunal member then put another proposition to the respondent, which, the Tribunal asserted, would justify the Tribunal disbelieving the respondent's account: 'TRIBUNAL: And have you heard recently about one of the Iranian singers who has lived in France for many years, recently came back to Tehran and put on a very large concert with thousands of people present? THE INTERPRETER: In Iran? TRIBUNAL: In Iran, yes. It is a French woman or a woman who is an Iranian/French woman - an Iranian woman who has been living in exile in France. She recently returned to Tehran to perform a concert, with thousands of people, as I understand, in attendance, both men and women. Are you aware of that? THE INTERPRETER: Is it very recently --- TRIBUNAL: She has done it, I think, last year or it could have been even the year before. THE INTERPRETER: Last year - I was in this prison and how would I know? I have no information about Iranian singers. TRIBUNAL: Well, it just seems to contradict what you're telling me, that you know, if you can hold a big concert in Iran with thousands of people attending, both men and women, and a female singer who has been living in France for many years can come and sing, as I understand it, old style Iranian songs, it seems what you are telling me is simply not happening in Iran today.' 102 The respondent did not accept the assertions of the Tribunal and the member then said: 'TRIBUNAL: Okay. Well, I haven't got the - I believe I read that in one of the Iranian newspapers so I will have a look for that and provide you with a copy. Because I think it is quite important, because the Iran that you are telling me about seems to be a very different Iran to the one that many other people know and understand.' 103 Later in the hearing the foregoing issue was taken up by the respondent's adviser, described as a 'law student trainee'. It appeared that the adviser had emigrated from Iran and spoke Persian. The following exchange took place between the adviser and the Tribunal member: 'Adviser: … If it is to do with God or, you know, their religious leaders or - that is fine. They can release them. People can listen. No problem. But if it is to do with expressing their feeling towards a human - you know, like commercial songs, that is a big no-no in Iran. TRIBUNAL: Well, is that right? I mean colleagues have been to Iraq or have tapes from Iraq. ADVISER: Iraq or Iran? TRIBUNAL: Sorry Iran, tell me that they are surprised that such tapes are now freely available in --- ADVISER: They are not. Probably they are - like, the spiritual ones. Which is really, really nice but --- TRIBUNAL: Well, no, I don't think it is, though. You see, we are talking about commercial concerts. Now, in Tehran there are concerts. I can get you a copy of that --- ADVISER: Yes, I have heard some of the tapes. But it is not the type of music that he is talking. I can --- TRIBUNAL: No, sure. But it is not religious music either. ADVISER: But is not - is definitely not the type of music - if - I mean, if you required, I can bring two types of the music which your colleagues, your know, claim that they are free in Iran. Because I have got this collection of them I really like. I am one of the people who like those music. I can bring that one. And also I can bring the music which he claims. And then you can see the difference. Those music that he talks about is prohibited definitely in Iran. And, I mean, I don't know which singer actually you were talking about. There were Iran/French one who went to Iran. I never heard of --- TRIBUNAL: Well, I will find that for you because it seems to me it is an indication of a significant shift. ADVISER: Yes TRIBUNAL: To have a concert with thousands of men and women together in the same theatre. ADVISER: And having - because if that was such a thing - I mean, if it was - if the singer was singing the songs which he is saying that is prohibited, it is a phenomenon. Like, it is just unbelievable. Because I --- TRIBUNAL: Yes, this was sometime ago. Anyhow, let me get that information for you and you can comment on it later.' 104 Some days after the hearing the adviser informed the Tribunal that as she had not received the foregoing information from the Tribunal she had made her own inquiries and found that Shakilla, a singer of traditional music, the performance of which was not prohibited in Iran, had sung in Iran but nothing had been found to support the assertion by the Tribunal that a singer based in France had performed before mass audiences in Iran. 105 On 31 January 2002, the Tribunal forwarded to the respondent's adviser the following 'Country Information' which, it was said, was the source of the Tribunal member's statements at the hearing about a 'French based singer Homa'. The information was said to have been provided by a French sociologist in the course of a telephone interview with a Canadian immigration officer on 10 September 1998. It is notable that nowhere in that material, later set out in the Tribunal's reasons for decisions, is the type of music performed by the singer identified and nor is it stated that 'thousands of men and women together in the same theatre' attended the performance. 106 The adviser responded on 15 February 2002 that she had made widespread inquiries in France and amongst the Persian community, which revealed that no French based singer existed by the name of Homa and that the situation was as she had informed the Tribunal, namely, that singers of non-traditional music in Iran would be prosecuted by Iranian authorities. 107 In its reasons for decision the Tribunal stated that it had placed no weight on the foregoing 'Country Information'. Of course, that was not the position the Tribunal took at the hearing when it purported to rely on that material, and on statements from friends and colleagues of the Tribunal member, to convey to the respondent the Tribunal's opinion that the respondent's account of his experience was contrary to fact. 108 The statement by the Tribunal that it placed no weight on that 'Country Information' did not correct the unfairness in the review process where the Tribunal relied on that, and other undisclosed material, to propound to the respondent that the account he sought to put forward was beyond belief as far as the Tribunal was concerned. 109 The reasons of his Honour point out that such conduct by the Tribunal was not an isolated event in the course of the hearing. At a later point in the hearing the respondent's account was again interrupted by the Tribunal which confronted the respondent with a further allegation that, in effect, his account was not truthful: 'TRIBUNAL: Okay, so tell me about the other people who you were in this compound with. INTERPRETER: Only some people - there were different people from different areas and I didn't get to know them, but I was there with my friend, the two of us together. TRIBUNAL: Well, I don't believe that. You were in a place for six months, in a correctional institution, I can't believe that you are unable to tell me what the other people were there for, what they were like, who they were, so please explain to me in detail about the other people? INTERPRETER: I apologise, but I didn't stay there for six months, I was there only for a month and a half. TRIBUNAL: That's right, I'm sorry, I made a mistake about that. But if you were there for 1-and-a-half months I'm sure you can explain to me who else was there, what offences they were there for and the nature of the offences that they were there for. The type of people who were there?' … 'TRIBUNAL: So you are telling me it was perfectly acceptable to stay up all night, presumably playing games, or having fun, and then sleeping all day, there was no problem with that? INTERPRETER: We didn't have any fun, or game in there. TRIBUNAL: Well what games did you play? INTERPRETER: There wasn't - there wasn't any games that we would play, I had - I had my head between my knees and thinking all the time and many people like me - were like me. TRIBUNAL: Well I'm finding that - I'm finding that too difficult to believe, I just can't believe that you sat with your head between your legs for 1-and-a-half months, thinking. So I suggest to you that what you are doing is making up what happened in Iran, by using your detention in Port Hedland, as an example.' 110 Such allegations of untruthfulness and the use of sarcasm by the Tribunal must have left the respondent bewildered as to the form of review being conducted. 111 Unfortunately more was to follow. The respondent, who appeared to be doing his best to answer the Tribunal's interrogatories and tell his story, was subjected to further rudeness, by being told again that what he said was unbelievable, that he was a person who 'love[d] to talk all the time' and that he should 'keep quiet for a minute and answer the questions rather than continue to talk'. As his Honour noted the Tribunal then stated abruptly that it would adjourn for ten minutes and said to the respondent: 'If you want to behave yourself properly then I will continue with the hearing. If you don't then just let your adviser know and we will stop the hearing.' 112 As his Honour said the audio recording provided no justification for the Tribunal's statement that the respondent was not behaving himself properly nor to issue a threat that it would stop the review hearing. His Honour's comments on this incident, set out earlier in these reasons, were properly made. 113 Shortly after resumption of the hearing the Tribunal demeaned the respondent's responses to the Tribunal by stating that: 'You don't have to keep talking the whole time. You are allowed to stop talking at some stage so if I am not asking you a question, don't feel that you have to keep talking. … Okay, that is fine. You have answered my question. There is no need to go on, and on and on and on….' 114 Such sarcasm and rudeness was unnecessary and unfair. The Tribunal seems to have had no regard to the respondent's circumstances, in particular the inherent difficulty in attempting to conduct such a hearing by video transmission when the respondent spoke no English and relied upon the services of an interpreter who was at a remote location and not present with the respondent, and where the video transmission system did not synchronise vision and sound, causing hesitation, delayed responses, and parties to talk over each other. 115 Having regard to the whole of the foregoing, I am satisfied that, as found by his Honour, the respondent was denied a fair hearing and, therefore, that the review conducted by the Tribunal was not carried out according to law. (See: NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137 per Hill J at [16]-[18], [63]-[68]). Although, as discussed earlier, his Honour referred to the time at which the hearing commenced as an element of the unfairness in the procedure adopted by the Tribunal, it was a minor aspect of his Honour's reasons and it is apparent that his Honour's conclusion would not have altered if he had omitted that consideration. 116 His Honour understood that a finding of procedural unfairness did not provide ground for review of the Tribunal's decision, but as set out by the High Court in Plaintiff S157/2002 such a finding did constitute a finding of jurisdictional error and ground for judicial review. Therefore, the orders made by his Honour, although based on other grounds, were duly supported by his Honour's findings that the Tribunal had not performed the duty imposed on it by the Act to review the delegate's decision in the manner provided by the Act. It follows that the purported decision was properly set aside. 117 The appeal must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RD NICHOLSON J: 118 I have had the advantage of reading in draft the proposed reasons of French J and of Lee J, which are to the opposite effect of each other. I do not seek to restate the facts there recounted and rely on those reasons for their statement of relevant circumstances. I have also joined with their Honours in listening to the tape of the hearing before the Tribunal in passages identified on behalf of the respondent. 119 This is an appeal from the decision of a Federal Magistrate. Relevantly, his Honour made a finding of fact that issues raised on behalf of the respondent (as the applicant for review before him) were individually not of major concern but taken collectively established to his satisfaction that the proceedings were procedurally unfair. But for the then pertaining view of the law as enunciated principally in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298, he would have set aside the decision of the Refugee Review Tribunal ('the Tribunal') on the ground of the procedural unfairness which he had found. 120 The appeal from that decision is by way of rehearing; that is, the powers of the court as an appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before it, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Federal Court of Australia Act (1976) (Cth), s 27. In the light of the decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, it is argued for the respondent that the orders which he made are supported by the finding which he made concerning the existence of procedural unfairness. The focus for resolution of the appeal therefore depends on whether there was legal, factual or discretionary error in that finding. 121 The principles relevant to determining whether or not there has been a breach of procedural fairness are now well enunciated. In Stead v State Government Insurance Commission (1986) 161 CLR 141 it was said by the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) at 145 that an appellate court will not order a new trial if the breach of procedural fairness 'would inevitably result in the making of the same order as that made by the primary judge at the first trial.' The Court continued: 'Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference….it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial on an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.' This reasoning was accepted and applied in Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 at 88-89, at [4] per Gleeson CJ; at 109, at [58]-[59] per Gaudron and Gummow JJ; at 122, at [104] per McHugh J; at 130-131, at [131]-[132] per Kirby J; at 153-155, at [211] per Callinan J. At 131, at [131] Kirby J characterised the decisions of the High Court as having emphasised that the withholding of relief 'will be a rarity.' This was accepted and applied by the Full Court (Carr, Merkel and Hely JJ) in Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55. 122 The course of the hearing is fully set out in the reasons of French J as supplemented by the reasons of Lee J. In my view, the course of that hearing was such that, approaching the matter with the requisite caution, it cannot be said the Federal Magistrate fell into legal, factual or discretionary error in the conclusion which he reached on the issue of procedural fairness. This is not a case where, in the face of what occurred at the hearing before the Tribunal, it can be easily concluded that the apparent breaches could have had no bearing on the outcome of the hearing. 123 For these reasons I would dismiss the appeal. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson J.

Associate: Dated: 15 January 2004 Counsel for the Appellant: Mr PR Macliver

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Ms LB Price (Pro Bono)