Ground 3
34 The allegation of actual bias rests on an argument that the Tribunal had a pre-determined view of the way in which Hamas and its members would conduct themselves, or as counsel described it, a "cultural bias" about Hamas. This pre-determined view, it was argued, led the Tribunal to reject the applicant's evidence about his encounter with Hamas members in October 2000.
35 Counsel for the respondent accepted that the privative clause provisions of s 474 of the Act would not preclude judicial review of the decision in cases where the decision maker has not acted in good faith, and that this would include most cases of actual bias. Such a case would fall within one of the exceptions to the operation of a privative clause like s 474 recognised by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (but note the observations of Conti J in NACL v Refugee Review Tribunal and Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 643 at [25].
36 Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
37 Whilst actual bias involves a state of mind which must be established by the party making the allegation, proof of an intentional state of mind adverse to the case of that party is not the only way of establishing it. Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including from the decision itself: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at per 126 - 127 per Burchett J and at 134 - 135 per North J; Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6; re Minister for Immigration and Multicultural Affairs; ex parte 'A' [2001] HCA 77 at [35] - [37]; and Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885. In the latter case Sackville J at [27] noted a significantly different emphasis between the judgments of Burchett J and North J in Sun Zhan Qui. Both judgments accept that errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially. However Burchett J on the one hand considered that a finding of actual bias was a "grave matter", different from "mere error, or even wrong-headedness" (at 127) whereas North J on the other hand considered that past judicial reticence in making a finding of actual bias against a decision maker was misplaced as prejudgment might occur, for example where the decision maker did not intend or did not know of a prejudice that governed their decision making, or even where the decision maker believed, and said, that they had not prejudged the case (at 135). Sackville J associated himself at [31] with the distinction drawn by Burchett J between actual bias and "mere error, or even wrong-headedness, whether in law, logic or approach", and at [32] said that it would be wrong in principle to make the leap too readily from factual error or faulty reasoning by a decision maker (even serious factual error or misconceived reasoning) to a finding of actual bias. This caution was applied by Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [35] when considering an allegation that the Refugee Review Tribunal had not acted in good faith in making the decision under challenge. I too share the view expressed by Sackville J. A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality. If the demonstration of factual errors, faulty reasoning and wrong-headedness in published reasons for decision are without more to be translated into a finding of actual bias, the result, as Wilcox J observed in Sun Zhan Qui at 122, will be to substitute for an enquiry into the character of the decision an enquiry into the character of the decision maker.
38 In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
39 Counsel argued that the reasons of the Tribunal which led to the rejection of the applicant's evidence about the Hamas incident so plainly disclose a pre-determined view about how the Hamas could be expected to act that the heavy onus resting on the applicant is discharged. Counsel stressed that the Tribunal treated a series of events asserted by the applicant as implausible. Counsel argued that there was no evidence about the way in which Hamas in fact conducted its operations. Accordingly the Tribunal's assessment that the events were implausible reflects a pre-existing belief by the Tribunal about Hamas behaviour which no amount of evidence could have overturned.
40 The allegation of actual bias therefore rests entirely upon inference said to arise from the expression of the published reasons for decision of the Tribunal which were adverse to the applicant. There is no other material advanced by the applicant to support the allegation of actual bias, and there is nothing in the papers from the files of the respondent or the Tribunal which gives rise to the faintest apprehension of bias by the Tribunal let alone pointing towards actual bias.
41 The submission that the reasons for decision disclose actual bias by the Tribunal is in my opinion completely without foundation. In other aspects of the Tribunal's reasoning, the Tribunal has fairly and properly given the applicant the benefit of doubt where there was reason to question his credibility. Apart from the reasoning relating to the October 2000 incident about which the applicant complains, the reasons suggest an even handed, fair assessment and weighing of the material before the Tribunal. There was a considerable amount of information about Hamas describing it as an extremist organisation promoting the goal of destroying the State of Israel. The proposition that the Tribunal lacked evidence about the way in which Hamas acted is open to question but there is no need to canvas that information. In my opinion the implausibilities identified by the Tribunal were not ones that could only be drawn if supported by country information or other material. They were implausibilities based upon ordinary human experience which, inevitably, a decision maker would call upon in weighing the possibilities and likelihoods of the claim.
42 I agree with the submission made by counsel for the respondent that the allegation of actual bias in this case is no more than an assertion that the credibility findings made by the Tribunal were wrong. The assessment of the credibility of the applicant was essentially a matter for the Tribunal alone. In Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 McHugh J said:
"In addition, the prosecutor alleges that the Tribunal breached section 430(1) by failing to set out reasons for its findings that the prosecutor's claims that members of PLOTE tried to recruit him were 'utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that events had occurred as alleged."