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[2003] FCA 730
respondent. Application dismissed. Applicant ordered to pay the respondent's costs: orders dated 17 July 2003; reasons at [34].
The applicant alleged that the Refugee Review Tribunal acted in bad faith because it was reckless in its decision-making. Gyles J held that carelessness, even serious carelessness, is not enough to prove bad faith. The allegation required a deliberate failure to attempt the Tribunal's task. The Tribunal's hearing process and consideration of further submissions, together with the nature of the applicant's specific complaints, did not support that allegation. The judicial review application was dismissed, with costs ordered against the applicant.
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NAKF sought judicial review of a Refugee Review Tribunal decision affirming a delegate's refusal to grant him a protection visa. The proceeding was brought under s 39B of the Judiciary Act 1903 (Cth). The final amended ground alleged that the Tribunal had not acted in good faith because it was “reckless in the exercise of its power”: [11], [14].
2 cited instruments linked from this judgment.
The protection claim was based on the applicant's account that he was from Kashmir, had been involved in a resistance movement, and feared arrest, torture or death if returned to India: [1]-[4]. The Tribunal accepted that he was an Indian national and former resident of Kashmir, and accepted that there was armed conflict in parts of Kashmir and Jammu. It nevertheless had doubts about his identity, the documents he relied on, and the consistency of his account. It concluded that it was not satisfied he faced a real chance of Convention-related persecution and that he was not a refugee: [10].
The background to the judicial review included a Tribunal hearing on 28 August 2002 with a migration agent and Punjabi interpreter present. The Tribunal allowed further information to be provided, extended the time for submissions at the agent's request, and received further material after that: [8]-[9], [26]. The applicant's eventual bad-faith particulars concerned alleged failures to consider submissions about interpretation, misstatements of evidence and “meaningless and irrational comments and findings”: [14].
Gyles J dismissed the application and ordered the applicant to pay the Minister's costs: [34]. The judgment's principal legal point is its distinction between negligent or mistaken decision-making and a deliberate failure to attempt the decision-maker's statutory task.
Gyles J treated the allegation as one of bad faith in its primary sense, rather than a claim about bias or use of power for an improper purpose. The amended application did not plead a collateral purpose or bias: [18]-[19]. The judgment emphasised that bad faith is a serious allegation, particularly when directed at a Tribunal member who was not a party to the proceeding: [19].
The applicant relied on a proposition in SBBS that “it is not necessary to demonstrate that the decision-maker knew the decision was wrong” and that recklessness could suffice: [20]. Gyles J warned against extracting that proposition from the surrounding reasoning. He noted that the Full Court's later decisions, including SBAN, qualified it by directing attention to the decision-maker's actual state of mind and rejecting “deemed or constructive bad faith”: [21]. He also referred to SCAS, which described bad faith as implying a lack of an honest or genuine attempt to undertake the task and involving a personal attack on the decision-maker's honesty: [21].
The crucial distinction was between recklessness as negligence and deliberate or conscious disregard of duty. At [24], Gyles J said that bad faith “cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence.” A Tribunal member could not “blunder into bad faith” through stupidity or carelessness. The required case was that the member wilfully and deliberately made the decision without attempting to perform the statutory duty. The examples given were deciding by tossing a coin without reading the file, allowing in every third applicant, or allowing applicants from different countries in rotation: [24].
The Court then applied that distinction to the record. The Tribunal arranged an interpreted hearing, with a migration agent present, considered issues relevant to review, invited further written material, extended the deadline when requested, and considered material supplied after the hearing: [26]. Gyles J regarded this history as inconsistent with wilful dereliction and sufficient to reject the application.
He also addressed the specific criticisms. The applicant's inconsistent dates of birth could be considered in circumstances where his identity was in issue. The Court found no basis for concluding that the Tribunal ignored material submitted after the hearing: [28]. The comment about a possible search of High Commission records was read as pointing out that the applicant had given no details about the identity or passport he allegedly used, making a check difficult: [29]. On two descriptions of the applicant's evidence, Gyles J accepted that the Tribunal might have exaggerated the account, but found that any exaggeration did not alter the gist of its reasoning about inconsistencies in the applicant's claimed role and the movement's methods: [30]-[31]. The individual complaints, separately or together, could not establish bad faith: [32].
The authorities discussed in the judgment distinguished bad faith from other forms of legal error. Gyles J referred to the structure of s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which separately identifies an improper exercise of power, including an exercise for a purpose other than the purpose for which the power was conferred, and an exercise of discretionary power in bad faith: [17]. He also distinguished bad faith from the rule against bias, which he described as an aspect of natural justice or procedural fairness: [18].
The judgment considered Buck v Bavone, which states that an authority exercising statutory power must act in good faith and cannot act arbitrarily or capriciously: [15]. It then addressed the applicant's reliance on SBBS. The judgment did not treat recklessness as a free-standing substitute for proof of bad faith. Instead, it read the proposition in light of subsequent Full Court explanations requiring attention to actual state of mind and an honest or genuine attempt to perform the task: [20]-[21].
Gyles J also examined the property-law authorities relied on in SCAZ, particularly Forsyth v Blundell and Kennedy v de Trafford. Those cases concerned the exercise of a mortgagee's power of sale and described conduct that recklessly sacrificed the mortgagor's interests. Gyles J noted that the issue in Forsyth involved the equivalent of equitable fraud, rather than fraud in the ordinary sense: [22]-[23]. He did not regard those authorities as making negligent administrative decision-making sufficient for bad faith.
The decision's contribution is therefore its application of the deliberate-versus-negligent distinction to a Tribunal review. It rejected a bad-faith claim founded on alleged errors in fact-finding or reasoning, without evidence of deliberate non-performance. The judgment is a single-judge Federal Court decision; its reasons engage with Full Court authorities but do not purport to replace them. The judgment itself cannot establish how later courts treated NAKF, and no post-2003 treatment is included in the materials supplied here.
At [21], Gyles J quoted the Full Court proposition that “[t]he inquiry is directed to the actual state of mind of the decision-maker. There is no such things as deemed or constructive bad faith.” In plain English, a decision-maker is not treated as having acted dishonestly merely because a decision was seriously wrong or because a legal test for bad faith might otherwise be inferred from the result. The allegation concerns the person's actual state of mind.
At [24], Gyles J stated: “Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence.” That is the central passage. It means an error, even a serious or careless one, is not by itself proof that the decision-maker acted in bad faith.
The next sentence at [24] explains the necessary character of the allegation: the Tribunal member must have made the decision “wilfully and deliberately” without attempting the statutory task. The examples of a coin toss without reading the file or a systematic approach unrelated to the merits illustrate an alleged absence of genuine decision-making, rather than poor reasoning within an attempted decision.
At [26], Gyles J relied on the practical course of the Tribunal review. A hearing was held, further material was invited and time was extended. The Court treated those steps as inconsistent with a wilful failure to carry out the task. In plain English, the procedural history mattered because it showed engagement with the review, not merely because the Tribunal had followed formal steps.
At [32], the Court concluded that the complaints could not establish bad faith “alone or in combination.” This indicates that accumulating criticisms of the Tribunal's reasoning did not, without evidence of deliberate dereliction, transform alleged errors into bad faith.
The case is relevant where a party alleges bad faith by an administrative decision-maker and supports the allegation mainly with mistakes, careless reasoning, misstatements of evidence or failures said to be irrational. The judgment says such matters do not, without more, establish bad faith: [24]-[25], [32].
It is particularly relevant where the argument relies on “recklessness” without specifying whether that means negligence or deliberate disregard of the decision-maker's task. Gyles J held that the distinction matters. A claim based on gross negligence does not meet the stated threshold. A claim of conscious or wilful disregard requires evidence directed to the decision-maker's actual state of mind: [21], [24]-[25].
The case also illustrates the significance of the decision-making history. Here, the hearing, interpretation arrangements, invitation for written submissions and consideration of additional material supported the view that the Tribunal member had attempted the task: [26]. Those features were assessed in this case; the judgment does not state that any one procedural step automatically rules out bad faith in every case.
The decision is not a general ruling that factual or legal errors are irrelevant in judicial review. Rather, it addresses the particular bad-faith ground pleaded. The applicant's grounds had earlier included other allegations, but the final amended application focused on bad faith through recklessness: [11], [14]. Gyles J's conclusion should therefore be read in that procedural context.
The reasons identify authorities decided before NAKF, including Full Court decisions in SBAN, SCAS and NAOS. Gyles J used those decisions to qualify the proposition from SBBS on which the applicant relied: [20]-[21]. Those are not later treatments of NAKF; they are prior authorities that shaped the reasoning in this case.
The judgment lists Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 as followed, SBAN and SCAS as followed, and SCAZ as distinguished. It also discusses Forsyth v Blundell and refers to Wu Shan Liang when characterising the detailed complaints: [21]-[23], [27]. These relationships describe how Gyles J used those authorities, not how later courts treated the present judgment.
No subsequent decisions or later citations of NAKF are contained in the judgment provided. Accordingly, this source does not support conclusions about whether later courts followed, limited or distinguished the decision. Establishing that history would require later case-law sources beyond the text supplied.
The judgment establishes the distinction it applied between negligent error and deliberate dereliction, but it does not set out a comprehensive evidentiary test for proving a decision-maker's actual state of mind. Gyles J gave examples of conduct that might demonstrate a failure to attempt the task, but did not describe an exhaustive list: [24].
The judgment also does not decide how the bad-faith ground would apply where a decision-maker had attempted the task but allegedly ignored particular evidence deliberately, or where there was evidence of a personal motive. The amended application did not plead bias or a collateral purpose: [18]-[19]. The decision therefore does not resolve the boundaries between those distinct grounds.
Nor does it provide a detailed account of how the pleaded bad-faith ground interacts with every other ground of judicial review. Gyles J described the detailed complaints as the kind of complaint criticised in Wu Shan Liang: [27]. His analysis concerned whether those complaints proved bad faith, rather than finally determining each possible alternative review ground.
Finally, at [33], Gyles J raised the question of how a proceeding accusing a Tribunal member of bad faith could be brought without joining that member. The Minister had not taken a procedural point, and the judgment did not decide the question. It remains a procedural observation in this case, not a ruling on joinder.
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REASONS FOR JUDGMENT 1 On 31 January 2001 a migration agent based in Sydney forwarded an application for a protection visa on behalf of the applicant to the Department of the respondent Minister, which was received on 8 February 2001. The address of the applicant was given as 83 Darling Street, Dubbo, in New South Wales. It was a well-prepared application. There was a completed form 956, completed forms B and C, a completed additional information sheet for form 866, a statement from the applicant, a certified copy of a letter said to have been issued by the applicant's political group in Kashmir, and articles from various human rights groups on the crisis in Kashmir. The applicant claimed to have been born on 1 January 1965 at the village of Sung Tung in Kashmir in India. He claimed to be a Muslim and to speak, read and write Hindi, and to speak English. There was also an indication that he could speak Urdu. He claimed to have lived in the same village in Kashmir until December 2000. He claimed to have left India on 19 December 2000 and to have arrived in Australia on 20 December 2000, using a passport to enter. 2 He claimed to have left India illegally, by paying an agent who provided him with a forged passport which allowed him to leave with a forged identity. He said he could not obtain a legal travel document because the Indian government was trying to arrest and kill him, so he had to pay money to get a forged passport. He claimed that the agent who brought him to Australia took all his documents, including his travel documents, away when he arrived in Perth, and had since disappeared. He said that having flown into Perth and been abandoned by his agent, he asked a taxi driver at Perth Airport to drop him at some mosque, which he did, and he stayed there for two days. He then came to Sydney from Perth with the help of a truck driver, whom he thought was Fijian and who spoke Hindi. He said that upon arriving in Sydney he first lived at the Surry Hills Mosque and obtained the support of people who were kind to him, and that he was currently staying in Dubbo with a friend, on a temporary basis. 3 His answer to question 36 of part C of the application was as follows: 'I was born in Kashmir and had lived there with my family for the past thirty-five years. My parents managed a family farm, and I have been a farmer all my life. Due to poor financial background of my family, I received no education, but had lived happily with my family before they were all murdered. Although India has taken over Kashmir, people in Kashmir have been fighting against Indian political domination for many years. I joined the resistance army 7 years ago to fight against the atrocity and brutality that Indian government imposed on our people. We called ourselves Muja Hadeen, meaning freedom fighter. During the past 7 years, I continued to worked as a farmer in the family farm while I was in the resistance force. However, in the middle of last year the Indian authorities discovered my involvement in the resistance force. Thereafter I have been hiding in different places with the help of my friends and comrades. I finally escaped with the help of an agent.' (emphasis added) His answer to question 37 was as follows: 'If I go back to Kashmir, the Indian authorities will arrest me and charge me for committing crimes against the State. They will sentence me to death sentence or they may even murder me in prison. My family had been virtually murdered by the Indian military. As I know other people in the resistant force, the authorities may torture me to force me to give a list of my contacts, and kill me afterwards.' His answer to question 39 was as follows: 'In their quest for control and dominance, the Indian authorities will no doubt arrest and kill me for my involvement with the freedom fighters against the brutality they have committed. They are looking to eradicate as many participants in the resistance force as possible. It is very likely that they will torture me for contacts before killing me. Although they have had superficial negotiations with the Pakistani government and the local elites to resolve the conflict, such promises and treaties have been effected and broken. Given their atrocious human rights record, the Indian authorities will not hesitate to hunt down all dissidents before any agreement is signed, so as to maintain their control over part of Kashmir even if it agrees to local autonomy. We will not accept anything short of complete independence.' (emphasis added) His answer to question 40 was as follows: 'The authorities of India will not protect me because they want to eradicate all those who are connected to the resistance force fighting for independence, and there is no recognised government in Kashmir apart from the Indian government. The Indian authorities have been killing many innocent Kashmiri men, women and children, and they will never protect me.' (emphasis added) 4 That part of his statement which related to his claim to protection is as follows: '1. That I am a member of a political party called Jammu Kashmir, in the state of Kashmir, nominally occupied by India. The party has approximately 300-400 members, and is involved in a resistance movement against the Indian government. It is trying to gain independence for Kashmir; 2. That I have been a member of that party for approximately 7-8 years; 3. That all of my family members have been killed for their involvement in the movement. My elder brothers were killed in combat on 6/01/1981, my father was killed on 25/12/1995 and my sister was shot by the Indian police on 10/10/1996; 4. That the leader of the party is Tarak Zurkalan; …' (emphasis added) 5 By letter dated 13 February 2001, an officer of the Department of Immigration and Multicultural Affairs wrote to the applicant, care of his migration agent, asking a number of questions as follows: '● Did you arrive at one of the international airports in Australia? Which city? · Did you clear by a custom officer, that is, your passport being stamped by the officer? · If yes, provide the passport number, country of issue, name of the holder of the passport, and the information on where is the passport now. (A copy of the pages of the passport showing the name of the holder and the number of the passport is required.) · Have you applied a visa overseas for entry to Australia? Where and when? · Which travelling agent or who arranged your travel? Give their names and contact addresses, if any? · Which airline and on which flight (ie the flight number) you took to travel to Australia? · On which date you departed your home country and on which date you arrived in Australia? · Have you kept any air tickets, boarding passes and/or airline luggage tags? If yes, please provide a copy of them to the department. · Please name all the cities/places you have travelled or passed through on your journey to Australia, the cities/ports the plane has stopped over and their dates. · Where did you stay on the first night you arrived in Australia? Please provide other addresses you have stayed over since you have been in Australia. · How much did you pay for your journey and to whom you have paid this sum? · Who accompanied you to Australia and who picked you up at the airport when you arrived here?' 6 On 6 March 2001 the applicant was interviewed by a departmental officer, with the assistance of a Hindi interpreter. The note of the interview is as follows: ' [NAKF] advised the following in the interview: He could not remember the name of the travelling agent who arranged his travel. He had not applied any visa for the entry to Australia. On 19 December 2000 he was accompanied by the agent to board the plane to Sydney. The flight departed Deli around 11.00am. He did not know the exact time (as he had no watch) nor the name of the airline. The plane took around 8 hours to arrive in Singapore and then departed 2 or 3 hours later for Sydney. He arrived in Sydney in the early morning on the next day. He passed through immigration and custom counters with no questions being asked. Once he entered the arrival hall, the agent took his baggage and passport, and asked him to wait there for a few minutes. He waited for three hours and found that the agent did not come back. By that time he had no baggage or personal belongings, other than two US$20 notes and one US$10 note in his pocket. He asked a cab driver to take him to any mosque. The driver took him to a mosque on William Street Perth and did not charge him as he had no Australian currency. He stayed in the mosque for a few days and a Fijian truck driver (who spoke Hidi) brought him to Sydney. He stayed in a mosque in Surry Hills and met a gentleman called Mohammad Akmal. Mr Akmal introduced him to a Pakistani, Zia Khan. Zia Khan asked him to look after his house at 83 Darling Street, Dubbo as Zia had to go overseas. Since then he had been staying there. He gave two telephone numbers for contact, namely 68852524 and 6885 5032. He stated that he might remember them wrongly.' 7 On 18 June 2001 the application for the protection visa was refused by a delegate of the Minister. The applicant made application for review of that decision by the Refugee Review Tribunal ("the Tribunal"). He stated his date of birth as 8 October 1968, his address was still 83 Darling Street, Dubbo, and he sought an interpreter in the Urdo (sic) language. His handwritten reasons for making the application were as follows: 'I would like to request that my case is given a new consideration by the Tribunal, in fact there has been a miscommunication between myself and the case officer, in response to a question I have described my function Tahreek-e-Jehad. The interpreter put the word of "goals" in English which I couldn't understand and later on I was asked as to what I was doing, there is no doubt that I have been working with the above organisation. I totally object the finding of the DIMA officer by saying that "The applicant has never been personally detained or mistreated by the Indian authorities". My simple answer is that if I was detained I would never made it to refuge here. Please allow me to present my case with evidences I shall inform RRT of my adviser once appointed.' 8 Arrangements for attendance at a hearing were made with another immigration agent on behalf of the applicant. That hearing took place on 28 August 2002, in the presence of the applicant's migration agent and a Punjabi interpreter. At the hearing, it was agreed that the applicant would be given leave to supply more information by 6 September. The migration agent sought an extension to Tuesday, 10 September, which was granted. On that day, a lengthy submission, with attachments, was forwarded by the migration agent to the Tribunal. Amongst other things, that submission took issue with the quality of the interpretation which had taken place at the meeting, and a detailed schedule of complaints was forwarded. Further information was forwarded by the migration agent to the Tribunal under cover of a letter of 13 September 2002. 9 By a decision made on 30 December 2002, and handed down on 29 January 2003, the Tribunal affirmed the decision not to grant the applicant a protection visa. 10 Because of the serious nature of the allegation which is made against the Tribunal member in this case, I set out the substance of the findings and reasons: 'The Tribunal accepts, on the basis of his language and familiarity with local history, that the Applicant is an Indian national and former resident of Kashmir. The Tribunal accepts that there is an ongoing armed conflict in parts of Kashmir and Jammu. However, the Applicant has claimed lifelong stability of domicile in Kashmir. Meanwhile, the Tribunal remains troubled as to the Applicant's true identity. This is partly on the basis of his unsatisfactory evidence as to the identity he allegedly assumed on his journey to Australia. The only documents attesting to the identity stated in his protection visa application are in the Tribunal's view self-serving forgeries, illogical in their conception and content. The Applicant's skirting of the issue of his date of birth and the unsatisfactory explanations for not recalling it also lead the Tribunal to the conclusion that he is hiding important information about himself in circumstances where he should rather be as helpful as possible, considering that he instigated the present protection visa application in the first place. The Tribunal has considered the Applicant's background as a farmer, and its potential to make him less impressive in discussion of administrative matters, but nevertheless concludes that he is concealing information, given his revision of reasons as to why he could not recall his own birthday. The question as to the Applicant's other identity is important as the Applicant claims to have satisfied Australian High Commission and local Immigration officials that he was someone else. The Tribunal considered it reasonable to examine the issue, even if it could not actually view the alleged forged passport. A search of High Commission records might have helped the Tribunal find that the Applicant indeed had no hand in applying for the visa he must have presented, without controversy, at the airport in Perth. Were the Tribunal to accept with any confidence that the Applicant is the individual he claims to be, it would still have to deal with the serious factual problems in his evidence, and it will now do so, for whoever he is, he did not satisfy the Tribunal that he is a member of any independence movement, let alone the one he settled upon in his evidence, after three very different attempts. Over the course of his evidence-giving, the Applicant gave inconsistent evidence as to the nature and methods of the movement to which he claimed membership. It is effectively beside the point what the Tehreek-E-Jihad claims to be its methods when the Applicant for his own part claims to have been a member of its armed resistance force, and then claims that all soldiers were trained only to fire into the air. It is also more relevant that the Applicant was assigned the role of peace negotiator when his claimed role was that of village-level social worker. Whatever the rhetoric of the Tehreek-E-Jihad itself, it is of much greater significance that the Applicant claims to have defied the Indian negotiators and, in effect, his own delegation, by raising his fist and welcoming imminent victory by armed Tehreek-E-Jihad forces (the same ones that supposedly did all their firing into the air). The Tribunal accepts that the Applicant's father and brother have been victims in the crossfire in separate isolated instances, but it cannot find that this would have any relevant implications for the Applicant's own survival. After all, he claimed in his primary application that he resided at the same address from birth until the time of his departure. This evident stability of domicile goes against his claims. The Tribunal concludes that the Applicant is an unreliable witness in the present matter. It also concludes, with respect, that the witness provided no helpful information in this case. The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in India. He is not a refugee.' 11 On 3 March 2003 this proceeding was commenced, pursuant to s 39B of the Judiciary Act 1903 (Cth). The grounds of the application were: '1. The Tribunal failed to exercise jurisdiction by not considering certain country information; 2. The Tribunal's decision involved error of law; 3. The Tribunal erred in requiring applicant to substantiate claims; 4. The Tribunal erred in dismissing witnesses; 5. The Tribunal failed to apply procedural fairness; 6. The Tribunal dealt with the Applicant and his case in bad faith; 7. The Tribunal dealt with the Applicant and his case with extreme discrimination.' 12 The application purported to be signed by the applicant, but his address for service was care of the migration agent who had acted for him throughout the Tribunal proceeding. The grounds of the application were entirely unhelpful. The applicant did not appear on the first return day, 13 March 2003. On 25 March 2003 the matter was listed for hearing on 12 June 2003, and ancillary orders made and directions given to prepare the matter for hearing. 13 On 12 June 2003 counsel appeared for the applicant and sought an adjournment on the basis that he had only very recently been briefed. At that time he handed up a proposed amended application, the grounds of which were: '1. The RRT, (a) Erred in failing to address the applicant's claims that all members of his family but he and his mother were killed by the Indian Army in Kashmir and (b) Erred in failing to consider the deaths of members of his family relevant to the applicant's prospects of being persecuted upon return to Kashmir. 2. The RRT made so many errors and assumptions in rendering and considering the evidence that it effectively failed to consider the case raised by the applicant. 3. The decision of the RRT was illogical, irrational or not based on findings or inferences of fact supported by logical grounds.' That amendment was not made at that time. 14 On 2 July 2003 the applicant sought and was granted leave to file an amended application, the grounds of which are as follows: '1. The decision was not made in good faith, in that the Refugee Review Tribunal was reckless in the exercise of its power. Particulars The Tribunal (a) failed to consider submissions which it invited about misinterpretation of evidence at hearing, (b) mis-stated evidence and claims, (c) made meaningless and irrational comments and findings.' 15 The amended application is said to be sourced in a statement by Gibbs J in Buck v Bavone (1975-1976) 135 CLR 110 at 118: 'It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend upon the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.' 16 An allegation that a decision-maker did not act in good faith is, in substance and effect, an allegation that the decision-maker acted in bad faith. It is pointed out by the authors of Aronson and Dyer, Judicial Review of Administrative Action, 2nd Ed at 246-247 that: 'Fraud, bad faith and improper purpose will all vitiate the exercise of public power. Although most acts or decisions thus vitiated could also be struck down on one or other of the less dramatic grounds of review (the considerations grounds being the most obvious), these grounds exist in their own right, both at common law and under the ADJR Act. "Bad motives" have not established a separate niche for themselves, largely because no separate treatment is needed in light of the bad faith or improper purpose grounds. Taking bad faith first, there are many cases which use the term, but in contexts in which it is clear that dishonesty, fraud, malevolence, spite or other personal motivation are not really being alleged. Wade and Forsyth conclude that bad faith "therefore scarcely has an independent existence as a distinct ground of invalidity". Some judges have urged that the term "bad faith" be confined to cases of personal wrongdoing. There are relatively few allegations of government dishonesty in the area of judicial review. There is a heavy burden of proof.' (footnotes omitted) 17 In this context, it is instructive to note the structure of s 6 of Administrative Decisions (Judicial Review) Act 1977 (Cth). One ground of review is that 'The making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made.' There is then a subdivision of that ground including, inter alia: 'An exercise of a power for a purpose other than a purpose for which the power is conferred.' and 'An exercise of a discretionary power in bad faith.' 18 This ground is to be distinguished from the rule against bias, which is an aspect of natural justice or procedural fairness (Aronson and Dyer at 453). 19 The amended application does not plead any case of exercising the power for a collateral purpose, nor a case of bias. It is thus a case alleging bad faith, in the primary sense, against a member of a tribunal external to the Department which is established by statute to impartially review decisions made by or on behalf of the Minister. The seriousness of that charge can hardly be over-estimated. It is made in proceedings to which the Tribunal member is not a party. As will become apparent, in my view, it is without substance. Unfortunately, making this charge against Tribunal members has become all too common. 20 It was sought to justify the case which is argued by reference to the decision of the Full Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, 194 ALR 749 and in particular the ninth proposition which appears at [48], 756: '[I]t is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.' 21 There are a number of problems with that justification. It is dangerous to select one proposition out of nine. It is even more dangerous when the nine propositions are an attempt to explain what is, after all, a straightforward concept, known in many areas of the law. The nine propositions are not a statute, and have no particular authority in themselves. Most importantly, viewed on its own, the ninth proposition is misleading. It has been qualified by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [7]-[8], and in particular by the statement: 'The inquiry is directed to the actual state of mind of the decision-maker. There is no such things as deemed or constructive bad faith.' In SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 the Full Court said: 'An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107] - [108].' The qualification was underlined by the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, particularly at [21]. 22 The authority cited for the ninth proposition in SBBS was the decision of von Doussa J in SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377. What his Honour said (at [33]) was: '… This passage implicitly recognises that to establish that an attempted exercise of power was not bona fide it may not be necessary for the applicant to go so far as to show that the power was exercised in a way that the decision maker actually knew was wrong. An exercise of power that was reckless as to whether it was in a manner required by law may not be a bona fide exercise. In Forsyth v Blundell (1973) 129 CLR 477 Walsh and Mason JJ held that it was open to the Court when considering the powers and duties of a mortgagee to find that the mortgagee in making the sale had acted with calculated indifference to the interests of the mortgagor and, accordingly, that it had not exercised its power of sale in good faith. Mason J at 506 said: "… the conclusion which I reach is that A.S.L. was in breach of its duty to the mortgagors in that it exercised its power of sale without taking reasonable steps to obtain a proper price and in so doing acted otherwise than bona fide, that is, recklessly, not caring whether the price obtained was in the circumstances a proper price or not." See also Davis v Taylor (1948) 48 NSWSR 514 at 519.' 23 The principle which was applied in Forsyth v Blundell (1973) 129 CLR 477 goes back to the classic statement by Lord Herschell in Kennedy v de Trafford [1897] AC 180 at 185: 'It is very difficult to define exhaustively all that would be included in the words "good faith" but I think it would be unreasonable to require the mortgagee to do more than exercise his power of sale in that fashion. Of course, if he wilfully and recklessly deals with a property in such a manner that the interests of the mortgagor are sacrificed, I should say that he had not been exercising his power of sale in good faith.' (emphasis added) The actual finding of the trial judge in Forsyth v Blundell (obviously made with that statement in mind) was as follows (from 506-7): 'Certainly, ASL failed to take reasonable steps to obtain the best price available in all the circumstances. But the matter really goes beyond that. It seems to me that the conduct of ASL at and about the time of sale reflected calculated indifference to the position of the mortgagor. It could well be said, using the language of the cases, that ASL was "reckless" and that it "sacrificed" the interests of the mortgagor.' (emphasis added) It is also worth noting that the question at issue there was the equivalent of equitable fraud and not fraud in the ordinary sense (per Walsh J at 496). 24 Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit (Lamb v Johnson (1914) 15 SR (NSW) 65 at 75-76; Derry v Peek (1889) 14 App Cas 337 or wilful blindness (Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 220; Blackburn Low & Co v Vigors (1886) 17 QBD 553 at 557-558). What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him - tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples. 25 Either the amended application does not plead a relevant ground, if "reckless" is used in the sense of grossly negligent, or, if it is intended to plead wilful and conscious recklessness, then the case falls lamentably short on the facts. 26 Before turning to examine briefly the individual complaints which are made about the conduct of the Tribunal member, an overview is in order. The lack of objective material to identify who the applicant was, and where and how he came to come to Australia, demanded the most careful scrutiny of his case. The Tribunal arranged a hearing, with an interpreter and a migration agent present, which covered issues which were plainly of relevance to the review, the conduct of which indicated that the Tribunal member had given serious attention to the file prior to that hearing. He invited the provision of further written material by a particular time after the hearing. He extended time for provision of that material at the request of the applicant's migration agent. He took into account not only that material which was supplied in due time but some further material volunteered thereafter. The written decision is quite orthodox. It sets out to summarise the claims of the applicant and available country information, makes findings, and explains the basis of the decision. In my opinion, that history is quite inconsistent with there being a wilful dereliction of duty by this Tribunal member, and is sufficient to compel rejection of the application. 27 This conclusion is confirmed, rather than denied, by consideration of the detailed matters to which reference is made by counsel for the applicant. In my view, this is the kind of complaint condemned in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 28 Counsel for the applicant referred to four particular matters in the course of his address. The first was the use that the Tribunal made of the inconsistencies and uncertainties as to the date of birth of the applicant. In my opinion, there was inconsistency and uncertainty as to the date of the birth of the applicant, and, in circumstances where his identity was very much in question, the Tribunal was entitled to have regard to those matters as it saw fit. A complaint was made in this connection that the Tribunal had sought information but then had not taken it into account. I can see no basis for concluding that the Tribunal did not take into account the material received after the hearing, and, indeed, I am satisfied that it did. 29 The second matter was a comment made in the findings and reasons as follows: 'A search of High Commission records might have helped the Tribunal find that the Applicant indeed had no hand in applying for the visa he must have presented, without controversy, at the airport in Perth.' It was put that this was an irrational statement which should not have been held against the applicant, as he had no ability to search the High Commission records. In my view, this statement was a (perhaps clumsy) way of highlighting that, as the applicant gave no facts at all as to how he obtained his passport, including the false name that he used or the date or place of obtaining it, it was impossible to undertake a check such as a search of High Commission records. 30 The third point concerned what was said by the Tribunal as to soldiers being trained only to fire into the air. When the transcript of the hearing is read, it is arguable that there was some exaggeration in that way of stating the position. However, the printed page rarely does justice to the reality of an interview, and, in the event, the exaggeration, if present, did not affect the gist of the point being made, which was the significant shifts and turns in the role which the applicant assigned to himself within the organisation of which he claimed to be a member and in the role of the organisation itself. The initial application painted the applicant and the organisation as militant fighters. His later versions departed from this. 31 The fourth point concerned a statement about the applicant's fist being raised, welcoming imminent victory. When the transcript is combed, it is arguable that this was an exaggerated picture. Again, however, if there was an exaggeration, it did not affect the gist of the point, which was that the applicant made the claim that he had, in effect, singled himself out at the relevant negotiations as a militant, opposed to compromise with the Indian authorities, was photographed and was so at special risk. The Tribunal was engaged upon judging the veracity of that claim. 32 In his written submissions, counsel for the applicant listed these and some other matters of criticism. Counsel for the Minister responded with a schedule in reply. Those submissions will be respectively marked for identification "1" and "2" and will be retained with the papers. I am quite satisfied that these matters of detail are sufficiently answered, or put in context, by the response on behalf of the Minister. By no stretch of the imagination could any of them, alone or in combination, establish bad faith or lack of good faith. 33 Whilst no procedural point was taken on behalf of the Minister, I have difficulty in understanding how a proceeding of this character can be brought without joining the Tribunal member who is traduced. I should add that, in my opinion, proceedings in this Court attacking decisions of the Refugee Review Tribunal are not to be conducted under a special set of rules free of the disciplines applying to other proceedings in the Court. 34 The application is dismissed. The applicant is to pay the costs of the respondent. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
NAKF
Minister for Immigration & Multicultural & Indigenous Affairs
(1973) 129 CLR 477
(1996) 185 CLR 259
(1988) 82 ALR 217
Application dismissed. Applicant ordered to pay the respondent's costs: orders dated 17 July 2003; reasons at [34].