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

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from orders made by a Judge of this Court on 3 May 2002 dismissing the appellant's application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent Minister not to grant the appellant a protection visa. The primary Judge also ordered that the appellant (the applicant below) pay the respondent's costs. 2 The review of the decision of the Tribunal was governed by the provisions of Part 8 of the Migration Act 1958 (Cth) (the Act), introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and taking effect on 2 October 2001. In particular, the terms of s 474(1) of the Act apply to this decision. It is unnecessary to deal with s 474(1) and its effect in detail. The five member bench of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 examined the operation of s 474 at length and there is no need to repeat that analysis here. 3 The appellant is a Palestinian Muslim who was born in the Ali Amouk refugee camp in 1966. He arrived in Australia on 11 September 2000 seeking asylum. 4 The primary Judge, at [4], set out comprehensively the elements of the claim by the appellant to found the asserted fear of persecution: "(a) the Applicant is a Palestinian Muslim, originally (as stated above) from Syria, who claims that he is now a stateless Palestinian; (b) his problems in his homeland began in 1986 when he commenced to serve in the "PLA", a division of the Syrian Army in which all civilians were Palestinian; prior to that time, he had been a taxi driver, auto electrician and painter, and had lived with his family in Syria; (c) he was also a member of the youth section of the Fatah (a Palestinian political faction headed by Yasir Arafat). This branch of the Palestinian Liberation Organisation ("PLO") was said to be responsible for organising national celebrations, and the Applicant claimed he had no involvement in the military section of that organisation; (d) whilst serving in the Syrian Army, he was forcibly removed from the training centre where he was stationed by some unknown civilian men, and transported to a location in Damascus, where he was asked about his association with the Fatah arm of the PLO movement; (e) that he was there detained for approximately one month and interrogated repeatedly, during which interrogation he was intimidated physically and psychologically; (f) after 36 days of interrogation and torture, he was then detained with other Arafat supporters until 1989, when he was released on the condition that he report to Damascus Intelligence at regular intervals during each week; he thereafter resumed or took up residence with his parents; (g) after consultation with PLO representatives in Jordan, he was given permission to leave Syria, upon the basis of a supposed pilgrimage to Mecca, though in fact he departed with a tourist group to travel to Moscow, where he hoped to study at Moscow University with the assistance of an Eastern bloc scholarship. At this point in time, the Applicant became anxious that if the Syrian authorities found out about his travel plans, they would attempt to prevent him leaving the country and going to Moscow. That was said to be because having been imprisoned for suspected political activity, it would be thought by the Syrian authorities that he was intending to continue with PLO activities outside of Syria; (h) he travelled to Moscow and studied at Moscow University from 1991 to 1996, during which time he joined the Palestinian Student Union ("PSU"), a youth organisation aligned with the PLO, and was in charge of a branch of that Union in Moscow. As a result of the close association of the PSU with the PLO, the Applicant received financial support from the PLO, as well as from his parents and the PLO office in Moscow. He received a Bachelor's degree in international law from the Moscow University; (i) on his return from Moscow, the Applicant was detained by the Syrian government from 1996 to 1999, after confessing to his participation in the PLO while in Moscow. He was told that reports had been received of his involvement in peace negotiations within the PSU for an agreement between the Palestinians and Israelis. In the course of being interrogated however, he denied involvement in the activist "Rakah" wing of the PLO, albeit that he had known of and associated with Rakah members whilst he was a member of the PSU branch of the PLO in Moscow. The Applicant claimed to have feared the reaction of the Syrian authorities to persons with an association with the Rakah movement; (j) on his release from detention in Syria in 1999, he was forced to sign a declaration to the effect that he would not leave Syria; his detention prevented him from gaining employment in the Syrian Civil Service; since he could not work in his preferred capacity, he decided to leave the country; and (k) in June 2000 the Applicant escaped Syria with the assistance of a so-called "people smuggler"; and on 11 September 2001 the Applicant arrived in Australia. The Applicant claimed that he would be imprisoned and tortured if he returned to Syria, because he had been banned from leaving the country, and had hence left Syria illegally." 5 The application before the primary Judge was to the effect that the Tribunal's decision was vitiated by the errors referred to in the application. The relevant paragraphs were in the following terms: "5. The applicant is a citizen of Syria. If he is deported to Syria he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. 6. The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent: a. Exceeded jurisdiction in making the decision to affirm the second respondent's decision not to grant the applicant a protection visa; and b. Erred in law in arriving at the decision to affirm the second respondent's decision not to grant the applicant a protection visa." 6 Although not reflected in the application, the appellant alleged before his Honour that the Tribunal's decision had been affected by actual bias. In addressing this allegation, the primary Judge explained (at [5]) the procedural history leading up to the Tribunal's decision: "(a) On 17 September 2000, the Applicant was interviewed by an officer of the Minister's department. Subsequently, on 8 March 2001, the Applicant lodged an application for a protection visa with the Minister's department, which as stated above was refused by a delegate of the Minister on 16 May 2001. (b) On 21 May 2001, the Applicant lodged an application for review with the Tribunal, and thereafter on 6 July 2001, the Applicant was invited to attend a hearing by the Tribunal, to be heard on 27 July 2001. On 17 July 2001, the Applicant accepted the invitation to attend the hearing. (c) On 24 July 2001, the Applicant sought an adjournment of the review hearing set down for 27 July 2001, citing personal psychological problems as the reason, which request was acceded to by the Tribunal. (d) As a result of the concern over the psychological state of the Applicant referred to in (c) above, the Tribunal commenced on 27 July 2001 to put in train a procedure whereby the Applicant could be psychologically assessed. As part of that procedure, the Tribunal obtained on 22 October 2001 a report from Dr Pulella, a consultant forensic psychiatrist. This report was compiled by Dr Pulella subsequent to an interview he conducted with the Applicant on 18 September 2001. At that time the Applicant was detained at Hakea Prison Complex in Western Australia. This report concluded that the Applicant suffered from depressive moods consistent with his life circumstances and present living situation in detention, but that he presented no evidence of actual psychiatric disorder. It further recorded the belief of Dr Pulella that the Applicant was fit to attend a Tribunal hearing, provided an Arabic interpreter was present. (e) As a result of this positive feedback regarding the Applicant's condition, as evidenced by Dr Pulella's report, the Applicant was invited on 27 November 2001 to attend a hearing of the Tribunal on 7 December 2001, an invitation which was accepted two days later. (f) Earlier on 30 July 2001, the Applicant had informed the Tribunal that an ABC televised programme had shown him engaged in a Port Headland demonstration, which programme had been picked up by the Al Jaseera TV station, which was well known in the Arab world; he asserted to the Tribunal that the secret service of Syria consequentially knew of his whereabouts; a further letter from the Applicant to the Tribunal on 18 September 2001 stated that his brother and cousin had been arrested by the Syrian intelligence and their house had been searched, and all of the Applicant's papers and books had been taken, including letters from Jewish friends in the "Rakah's Movement for Peace"; hence he contended that the Syrian authorities had now imputed to him the role of a supporter of Israel. (g) On 13 December 2001, the Tribunal wrote to the Applicant and informed him of certain information which it suggested might be the reason or part of the reason for affirming the decision to refuse the protection visa, and gave him an opportunity to comment upon the same. So much may be observed to have been conduct prima facie consistent with its statutory obligation under s 424A of the Act. The information was to the effect that the Australian Department of Foreign Affairs and Trade ("DFAT") had mutually agreed on a regime for the voluntary return to Syria of people in the Applicant's position, that is to say, people with an association with the PLO. The Tribunal's letter also referred to a journal article which "indicates Rakah… is the single largest party in the Arab sector of Israel" and that "[a] delegation of Rakah had been invited to visit Syria in 1997 and even progressive Jews had been approved to attend". In response to that letter, the Applicant wrote on 18 December 2001 to the Tribunal, stating that he rejected the Syrian government's motives for offering the invitation for the return of Syrians like himself, saying "the aim of such action is to deceive and despises (sic) the true intention of the government of Syria". (h) By letter of 12 January 2002, the Applicant informed the Tribunal to the effect that he would forward to the Tribunal further country information in support of his application. The Tribunal agreed to this request by letter of 16 January 2002, and additional information (being over 50 pages in length) was provided to the Tribunal by the Applicant on 21 January 2002." 7 The primary Judge dealt with the two main submissions put to him, namely that the Tribunal had been guilty of actual bias and had failed to comply with the requirements of s 424A of the Act, by failing to provide certain information to the appellant. 8 After referring to Jia v Minister for Immigration & Multicultural Affairs at first instance ([2000] FCA 1633) and in the High Court ((2001) 205 CLR 507), the primary Judge indicated (at [16]), correctly in our view, that actual bias was a serious allegation and one not lightly to be made. He also referred (at [21]) to what was said in Kordan Pty Ltd v Federal Commissioner of Taxation (2000) ATC 4812 at 4815, and Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4268 at 4276, and the necessity for "proof of extreme circumstances". 9 The primary Judge held that s 424A did not oblige the Tribunal to supply the full text of country information to the appellant. It was enough to provide the substance of the country information. 10 The notice of appeal sets out five grounds of appeal: "(a) That the Court erred in law in finding that actual bias "is a serious allegation and not one lightly made" and "necessitates proof of extreme circumstances" in defining the test and requiring evidence of "extreme default of its administrative function". (b) That the Court erred in law in finding the Tribunal's erroneous findings of fact did not evidence bias in circumstances where the erroneous findings were contradictory of concurrent findings and findings made contrary to the evidence given at the hearing. (c) That the Court erred in law in not finding that the questioning of the Tribunal member was closed minded and hostile. (d) That the Court erred in law in finding that s 424A of the Migration Act necessitates the Tribunal to only provide information "sufficient to signal" the Tribunals [sic] prima facie view formed on other information. (e) That the Court erred in law in failing to find s 424A required the Tribunal to provide the substance of the information and an available copy of the information in circumstances where that information is intended to be [sic] contradict evidence given by the applicant concerning the applicant's personal circumstances." 11 We deal with each in turn. As to the first ground, it is unnecessary to set out the law on actual bias. It is sufficient to say that the statements which are complained of in par (a) of the grounds of appeal are consistent with the authorities on actual bias and do not reflect any error of law. In any event, his Honour went on to deal with the bias submissions as follows (at [22]): "Further as to the case of actual bias advanced by the Applicant, Counsel for the Minister in my opinion correctly contended that the Applicant's assertions to the effect that the Tribunal had made erroneous findings of fact, and did not give sufficient weight to particular matters of evidence of supposed significance, did not evidence bias on the part of the Tribunal, and were instead findings relating to the merits of its decision, and could not be reviewed by this Court, whether under the strictures of the new privative clause regime, or the wider statutory regime which preceded its introduction. In response to the Applicant's further contention that the Tribunal had been affected by bias due to what was alleged to be 'hostile and partisan' questioning on the part of the Tribunal, there was not proffered any viable basis for that contention, and the same is also without foundation. Indeed, I would observe that the transcript of the Tribunal hearing, annexed to the affidavit of Mr Kalle which I granted leave to file on 3 May 2002, disclosed no pattern or theme of questioning which could be said to be either inappropriately hostile or partisan, or to stem explicitly or implicitly from a biased mind." 12 We have examined the transcript of the Tribunal hearing and the Tribunal's reasons and we can only agree with the expressed view of his Honour. Further, the existence or not of bias was not the relevant question. The relevant question was whether the Tribunal had approached the matter in a bona fide attempt to exercise its statutory task, although a finding of actual bias might be sufficient to establish that the Tribunal had not made a bona fide attempt to discharge its statutory functions: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs, at [630], per von Doussa J. (See also SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, at [35] to [37], per von Doussa J.) On the question of bona fides, the primary Judge concluded as follows (at [23]): "I therefore find and conclude that the evidence in the proceedings does not warrant the finding that the Tribunal failed to make any bona fide attempt to exercise its statutory powers. On the contrary, I find that the Tribunal undertook a careful and bona fide appraisal of the material which it purportedly examined, and the criticisms of the Applicant have no purported foundation, much less a foundation which might circumvent the operation of the privative clause." Having read the reasons of the Tribunal and the transcript of the hearing before the Tribunal, we agree. 13 As to the second ground of appeal, we repeat that there is no error disclosed in his Honour's conclusion that the Tribunal's decision was not affected by actual bias. As we have also said, we do not consider there is any basis for a conclusion that the Tribunal failed to approach the matter bona fide. 14 We have already dealt with the third ground of appeal. 15 The fourth and fifth grounds of appeal invoke s 424A of the Act. In written submissions filed by leave after the hearing of the appeal had concluded, the appellant submitted that the Tribunal had breached s 424A(1) of the Act by failing to give him particulars of information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. To assess this submission it is necessary to provide further details of the relevant circumstances. 16 (i) At the hearing on 7 December 2001, the Tribunal put to the appellant that "Rakah" was the Israeli Communist Party and that, according to a BBC report broadcast in 1997, the Syrian Government had invited Rakah to Damascus for a conference. The Tribunal suggested to the applicant that it made little sense for him to be concerned about being locked up by reason of his association with Rakah, when the Syrian authorities were prepared to receive members of the Party at a conference. (ii) On 13 December 2001, the Tribunal wrote to the appellant in these terms: