The Application for Review
8 As Justice Stone recognised, the decision under challenge is a privative clause decision within the meaning of s 474 of the Act. The appellant was represented by counsel at the hearing before the primary judge, and the only ground of review raised on the appellant's behalf at that hearing was actual bias constituting jurisdictional error. The particulars in support of this ground allege wrongful findings by the Tribunal as to the credibility of the appellant and the absence of independent forensic expert examination of the appellant's documents to determine their authenticity. Her Honour said at [15]:
"The Court's jurisdiction to review such decisions is severely limited by the provisions in s 474 and s 476 of the Act. While the principle enunciated by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 suggests that there remains some scope for review, the extent of this jurisdiction has yet to be determined. As I have formed the view that the claim of actual bias cannot be substantiated it is not necessary for me to comment on this issue."
9 To establish actual bias, the least that must be shown is that the Tribunal had a "closed mind" - a pre-formed view which was irreversible regardless of what further evidence was presented: MIMA v Jia (2001) 178 ALR 421; 75 ALJR 679 at [71-72] per Gleeson CJ and Gummow J; [121] per Kirby J; and [185-186] per Hayne J. Drummond J expressed the view in Kan v MIMIA [2002] FCA 923 at [24] that it would be:
"difficult to see why actual bias, a subjective motivation, should not come within the first Hickman proviso …"
10 That conclusion is supported by the observations of Mansfield J in SBAN v MIMIA [2002] FCA 591 at [29] that, in the light of a finding that the Tribunal was actually biased, it was:
"… then a short step to the conclusion that the Tribunal did not exercise its function of deciding the application in good faith, but did so with a mind apparently directed to deciding the claim adversely to the applicant."
11 Stone J carefully considered the question of whether actual bias had been made out. Her Honour concluded:
"There is no indication here of a closed mind or of the Tribunal having prejudged the matter. The claim that the Tribunal had somehow demonstrated bias in considering if the applicant had grounds to fear persecution from the Bangladesh Nationalist Party cannot be accepted. Although the applicant did not claim a fear of harm from this party, it was entirely proper for the Tribunal to consider this issue. This consideration in no way detracted from the Tribunal's consideration of the possibility of harm from the Awami League and the Tribunal made extensive findings on this issue. The Tribunal is not bound to confine its consideration to matters or issues raised by the applicant.
The applicant complains that the Tribunal dismissed his documentary evidence without taking independent steps to verify their authenticity. It was however for the Tribunal to decide what weight should be given to these documents. There is no obligation on the Tribunal to seek any independent forensic analysis and failure to do so is not evidence of a closed mind.
Finally, it was submitted for the applicant that, even if the instances referred to did not individually indicate the presence of actual bias, they do so if taken together. Counsel did not elaborate on this and the bald assertion is not convincing. In my opinion, even collectively, these instances do not indicate any prejudgement of the issues raised by the applicant. I am not able to find any evidence in the reasons of the Tribunal that would support even a claim of apprehended bias and certainly there is no evidence of actual bias."
12 The notice of appeal does not elucidate how it is said that the primary judge erred in finding the non-existence of actual bias, the sole ground of appeal raised before Stone J.
13 No error has been demonstrated in her Honour's finding on the ground relied on for an order of review. The appeal should be dismissed, with costs.