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[2003] FCAFC 25
appellant. Appeal allowed; orders of Moore J dated 5 September 2002 set aside; matter remitted to Moore J for further hearing and determination; appellant's appeal costs to be his costs in the cause.
The Full Court did not decide whether the Refugee Review Tribunal was biased. It held that the primary Judge's reliance on the privative clause could not stand after the High Court clarified that the clause does not protect jurisdictional errors and that unfair procedure may amount to such an error. Because deciding the bias allegation required close examination of the hearing tapes and factual findings, the matter was sent back to the primary Judge. The appeal costs would be payable by the appellant only if he ultimately succeeded in the underlying matter.
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1,777 words · generated 01/10/2026
NAEB applied for a protection visa on 8 February 2000. The Minister’s delegate refused the application, and NAEB sought review by the Refugee Review Tribunal. The Tribunal rejected his claims that he had been involved with a secret political group in Uganda and tortured by Ugandan police because of that involvement. It described his account as “far-fetched and implausible” and did not accept his explanations for his scarring or post-traumatic stress disorder. The Tribunal affirmed the refusal of the visa [1].
3 cited instruments linked from this judgment.
In the Federal Court, NAEB alleged that the Tribunal’s conduct gave rise to a reasonable apprehension of bias. He did not allege actual bias. His case concerned what he described as an antipathetic or overbearing attitude, his distress during the hearing, and the Tribunal’s continued questioning and presentation of complex propositions that he was said not to understand. The primary Judge was referred to the transcript and audio tapes, but did not listen to the tapes because of his understanding of the effect of s 474 of the Migration Act 1958 (Cth) [2]-[3].
That understanding reflected the Full Court’s earlier decision in NAAV, which had treated the privative clause as effective against review for a denial of procedural fairness. In the meantime, however, the High Court decided S157/2002. The Full Court explained that S157/2002 rejected the relevant approach to s 474: the provision did not protect decisions affected by jurisdictional error, and denial of procedural fairness could constitute jurisdictional error [4].
The Full Court therefore allowed NAEB’s appeal, set aside the primary Judge’s orders and remitted the matter to Moore J for further hearing and determination. It did not decide whether the Tribunal’s conduct actually established apprehended bias. The appeal costs were ordered to be NAEB’s costs in the cause [9].
The immediate legal problem was that the primary Judge had dismissed the application on the basis of a legal approach to s 474 that the High Court had since held to be wrong. The Full Court relied on S157/2002 for the proposition that the privative clause did not protect jurisdictional errors. It also noted that S157/2002 recognised that denial of procedural fairness may constitute jurisdictional error [4].
The Court then connected apprehended bias with procedural fairness. Relying on Re Refugee Review Tribunal; Ex parte H, Re Refugee Review Tribunal; Ex parte Aala and Hot Holdings Pty Ltd v Creasy, it said that both actual bias and a reasonable apprehension of bias are aspects of procedural unfairness [5]. It described the absence of actual or apparent disqualifying bias as an incident of the duty to act fairly. The significance for this appeal was not that bias had been proved, but that such an allegation could not simply be shut out by treating s 474 as a complete bar to review.
The Court declined the respondent’s invitation to decide the bias allegation itself. It would have had to examine the audio tapes and make findings about the Tribunal’s proceedings. That task involved a factual assessment, including questions of impression and degree. The Court considered those matters more appropriate for a single Judge at first instance [6]. The procedural result was thus limited: the legal foundation for the dismissal had changed, but the factual claim remained open.
The Court also addressed how the remittal fitted with appellate principles. It referred to Allesch v Maunz and noted that the Full Court’s approach was consistent with the idea that appellate powers are exercised where the appellant demonstrates legal error in the primary Judge’s order. It also followed the approach taken in NADH of 2001, where a similar question had been remitted under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) [6].
The costs order reflected the unresolved state of the case. NAEB had succeeded in having the dismissal set aside, but the Court said that whether the appeal and remittal were justified would only be known after the remaining issue was determined. The respondent had not argued against the appeal based on S157/2002. The Court therefore made the appeal costs costs in the cause, so that NAEB would have those costs if ultimately successful [7]-[8].
Before the High Court’s decision in S157/2002, the primary Judge applied the approach to s 474 adopted in NAAV. On that approach, the privative clause was understood to protect decisions even where procedural fairness was alleged to have been denied. That was the basis on which the primary Judge concluded that he was obliged to dismiss the application [3].
After S157/2002, as the Full Court described it, s 474 did not protect jurisdictional errors. A denial of procedural fairness could constitute jurisdictional error, and therefore was not automatically excluded from review by the clause [4]. The Court further explained that apprehended bias was a recognised aspect of procedural unfairness [5]. In this case, those propositions meant that the application could not be dismissed solely by relying on the former broad reading of s 474.
The judgment’s holding is appropriately read in context. It did not decide that the Tribunal was biased, that the visa decision was invalid, or that NAEB was entitled to a visa. It identified the legal error in the reasoning that had foreclosed consideration of his allegation and sent the matter back for that allegation to be assessed. The Full Court resolved the statutory and procedural basis for the appeal, not the ultimate factual dispute.
The judgment does not provide a wider account of the law before or after S157/2002 beyond those propositions. It does not analyse the full boundaries of jurisdictional error, set out a general test for apprehended bias, or determine how every type of procedural-fairness claim interacts with s 474. Those questions should not be attributed to this decision beyond what it expressly says at [4]-[5].
At [4], the Court says: “Section 474 is not, that decision holds, effective to protect jurisdictional errors.” In plain English, the privative clause could not be treated as preventing review where the challenged decision was affected by jurisdictional error, according to the High Court authority the Court applied.
Also at [4], the Court says that “a denial of procedural fairness may constitute jurisdictional error.” This is a possibility, not a finding that every procedural defect amounts to jurisdictional error. Applied to NAEB’s case, it meant his allegation of unfairness could not be dismissed just because s 474 existed.
At [5], the Court states that “both actual bias and a reasonable apprehension of bias are aspects of procedural unfairness.” The practical significance is that an allegation of apparent bias can raise a procedural-fairness issue even if the applicant does not allege actual bias. NAEB had expressly not alleged actual bias [2].
At [6], the Court explains: “We consider this is a task more appropriate to be undertaken by a single Judge.” The Full Court was not ruling on the merits of the bias allegation. It was allocating the fact-finding task to the primary Judge because answering it required consideration of evidence about the Tribunal hearing.
At [8], the Court says the appellant should have his appeal costs “if he is ultimately successful.” The order did not award costs immediately without qualification. It tied the appeal costs to the result after the outstanding issue was decided.
The decision is relevant to a case where a party alleges that an administrative tribunal’s conduct involved apprehended bias, and a court has declined to examine the allegation because it considers a privative clause to prevent review. The judgment supports examining whether the challenged conduct is said to amount to procedural unfairness and whether that unfairness could amount to jurisdictional error, rather than assuming that the clause forecloses the claim [4]-[5].
It is also relevant procedurally where the allegation depends on evidence about what occurred in a hearing. Here, the appellant relied on the transcript and audio tapes, and the Court considered that assessment of the Tribunal’s approach required factual findings and an evaluation of impression and degree [2], [6]. The decision supports remittal as a possible appellate course when the primary Judge is better placed to assess that material.
The case does not establish that distress, difficult questioning, complex propositions, or an adverse credibility assessment necessarily establish apprehended bias. Those were features of NAEB’s complaint, not findings by the Full Court that bias existed [1]-[2]. The unresolved question was left for the primary Judge. The judgment therefore triggers issue-spotting about the hearing record and the reasoning that led to any finding, rather than supplying a result for a different factual record.
The judgment identifies earlier decisions and explains how they informed the result: NAAV was the approach applied by the primary Judge; S157/2002 changed the legal premise; Re Refugee Review Tribunal; Ex parte H, Re Refugee Review Tribunal; Ex parte Aala and Hot Holdings were relied on for the relationship between bias and procedural unfairness; and NADH of 2001 was followed on remittal [3]-[6].
The supplied judgment does not discuss later judicial treatment of NAEB itself. It contains no subsequent cases considering, following, distinguishing or limiting this decision. On the information in the judgment alone, later treatment cannot be assessed. A research user would need later judgments and current legal sources to establish whether subsequent courts have adopted or qualified its reasoning.
The central question left open was whether the Tribunal’s conduct, viewed in context and on the hearing record, gave rise to a reasonable apprehension of bias. The Full Court did not listen to the audio tapes or make findings about the Tribunal’s manner, NAEB’s distress, or his ability to answer questions. It remitted those matters to the primary Judge [2], [6], [9].
The judgment also leaves open how the primary Judge would evaluate the relationship between the Tribunal’s questioning and the medical evidence concerning NAEB’s state of mind and ability to answer questions. The Tribunal had said it was mindful of the medical advice when assessing credibility, but the Full Court did not assess whether that treatment was adequate or fair [1].
Nor did the Full Court decide what consequences would follow if apprehended bias were established, or whether the visa decision would ultimately be set aside. Its order was for further hearing and determination, not a final determination of the underlying application [9]. Those matters should not be inferred from the appeal outcome.
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REASONS FOR JUDGMENT THE COURT: 1 The appellant applied for a protection visa under the Migration Act 1958 (Cth) (the "Migration Act") on 8 February 2000. The Minister's delegate refused the grant of such a visa and the appellant sought review of that decision from the Refugee Review Tribunal (the "Tribunal"). The Tribunal rejected the appellant's claims of involvement with a secret political group in Uganda and his claims of being tortured by Ugandan police because of that involvement. The Tribunal considered his accounts to be "far-fetched and implausible". The Tribunal did not accept that the scarring on the appellant's body was connected to his ill-treatment in prison because of his political affiliations, nor did it accept the condition of post-traumatic stress disorder, from which he suffered, to have been caused by his witnessing the murder of his father by the Ugandan security forces. So far as concerned the appellant's state of mind and his ability to properly answer questions, which had been the subject of medical reports, the Tribunal said that it had been mindful of that advice in assessing his credibility. The Tribunal affirmed the decision not to grant the visa. 2 Before his Honour the primary Judge, it was contended that there was an apprehension of bias on the part of the Tribunal. Actual bias was not alleged. The case presented to his Honour was of an antipathetic, and even overbearing, attitude adopted by the Tribunal. The appellant was distressed, it was submitted, and in these circumstances the Tribunal should not have continued with the hearing. Instead a number of complex propositions were put to the appellant, which he was unable to understand. His Honour was referred to the transcript and the audio tapes of the proceedings before the Tribunal. It was said that the tapes make apparent the Tribunal's attitude. Because of his Honour's view about decisions concerning s 474 of the Migration Act, his Honour did not listen to the tapes. 3 It had then been held by a Full Court of this Court, in NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228, ("NAAV") that s 474 (the "privative clause") was effective to protect from review any decision made in denial of procedural fairness. His Honour the primary Judge considered that bias, which could be said to be reasonably apprehended, fell within that category. His Honour was, in these circumstances, obliged to dismiss the application. 4 The High Court has now held that the approach to the construction and application of s 474 adopted in NAAV, and many other decisions of this Court, was wrong: S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2. Section 474 is not, that decision holds, effective to protect jurisdictional errors. S157/2002 also holds that a denial of procedural fairness may constitute jurisdictional error (at [83]). 5 It is also apparent from earlier decisions of the High Court, as his Honour the primary Judge observed, that the requirements of procedural fairness extend to cases in which apprehended bias was established. Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [5], [2001] HCA 28; Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219, (2000) 204 CLR 82, [2000] HCA 57 and Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90, [2002] HCA 51 hold that both actual bias and a reasonable apprehension of bias are aspects of procedural unfairness. One of the incidents of the duty to act fairly, in exercising a statutory right that affects rights or interests, is "the absence of the actuality or the appearance of disqualifying bias" (perGleeson CJ, Hot Holdings at [21] citing Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367). It follows, in our view, that the appeal must be allowed. 6 This Court was invited by the respondent to determine for itself the question as to the Tribunal's approach and whether a reasonable apprehension of bias was established. This would require this Court to consider what is contained in the audio tapes and make findings about the proceedings before the Tribunal. We consider this is a task more appropriate to be undertaken by a single Judge. A similar question arose recently in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 19. The Full Court there considered it to be more appropriate to remit the matter under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) and the Court considered that such an approach was not inconsistent with observations in Allesch v Maunz (2000) 203 CLR 172 (at [23]) [2000] HCA 40, that the powers of an appellate court are exercisable only when the appellant can demonstrate that the order of the primary Judge is the result of some legal error. We respectfully agree. We would add that an appeal court is obviously assisted by the determination of such a question by a primary Judge, the consideration of which is likely to involve questions of impression and degree. If an appeal is then brought in respect of that decision the appellant would be required to identify, with precision, the error in the primary Judge's reasoning or approach conformable with the nature of the question before the primary Judge. 7 With respect to the question of costs, in NADH, the Court considered that an order that the costs of the appeal be the appellant's costs in the cause would be fair. We are also of that view. Whilst the appellant has had a measure of success because of the recent decision in S157/2002, the respondent did not seek to argue against it. 8 The attention of this Court was focussed upon whether the Court should conclude the matter and it is not considered appropriate to do so. Whether this appeal and the remitter were justified will only be known when the outstanding question is determined. In these circumstances we consider that the appellant should have his costs if he is ultimately successful. 9 The appeal will be allowed, the order of the primary Judge set aside and the matter remitted to the primary Judge for further hearing and determination. The costs of the appeal will be the appellant's costs in the cause. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, North and Allsop.
Associate: Dated: 12 March 2003 Counsel for the Appellant: Mr M McAuley
NAEB OF 2002
Minister for Immigration & Multicultural & Indigenous Affairs
(2000) 203 CLR 172
(1990) 170 CLR 321
(2002) 193 ALR 90
(2002) 193 ALR 449
(2001) 179 ALR 425
(2000) 176 ALR 219
(2000) 204 CLR 82
(2003) 195 ALR 24
[2000] HCA 57
Appeal allowed; orders of Moore J dated 5 September 2002 set aside; matter remitted to Moore J for further hearing and determination; appellant's appeal costs to be his costs in the cause.