Singh v Minister for Immigration and Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 This matter first came on for hearing before me on 18 December 1998. At that time the applicant sought review of a decision of the Refugee Review Tribunal refusing to grant him a protection visa. At that time there were two grounds of review pleaded under s 476(1)(a) of the Migration Act 1958 (the Act). The first alleged that there had been a failure to meet the procedural requirements of s 420(1), in particular that there had not been a fair hearing before the Tribunal. On that ground the application succeeded and the decision of the Tribunal under review was set aside. It was ordered that the matter be remitted to the Tribunal to be reheard by the Tribunal differently constituted. 2 I held for the reasons that were given on 18 December 1998 that the applicant had established that he could not get a fair hearing before the Tribunal which had determined his review in April 1998 because the Tribunal was constituted by a person who had earlier heard and determined a closely related matter on substantially the same evidence. The other matter was decided by the Tribunal on 16 February 1998. The applicant in that matter was the present applicant's estranged wife, who was seeking a protection visa. Her claim included a claim to be treated as a refugee on the basis that she would have imputed to her a political opinion based on her husband's activities. Her claim was rejected on the basis that the case she presented was untrue. 3 I held that the Tribunal had failed to comply with s 420(1) which provides that the Tribunal in carrying out its functions under the Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The respondent Minister appealed from my original decision. Before the appeal was heard, the High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. 4 The High Court held that the jurisdiction of the Federal Court was defined by s 476 of the Act, and it was not an acceptable approach to treat s 420 as importing additional requirements in substitution for the intention of Parliament as expressed in s 476. It was held that s 420 served to describe the general nature of review proceedings but did not operate to mandate specific procedures to be observed by the Tribunal. The effect of the decision on the present matter was to confine the applicant to the grounds of review stated in s 471, and in particular to s 476(1)(f), which provides that an application may be made for review by the Federal Court of a judicially reviewable decision on the ground that "the decision was induced or affected by fraud or by actual bias". 5 At the original hearing before me, actual bias was not advanced as a ground. It was unnecessary for the applicant to do so. Counsel for the applicant, no doubt out of an understandable reticence to unnecessarily allege actual bias against a Tribunal, presumably was content to rely on the lesser allegation of a procedural error arising from an apprehension of bias, as that was thought at the time to be sufficient. 6 The matter came before a Full Court of this Court on 30 August 1999. The associate's certificate in respect of that hearing records that after a period of argument, the following orders were made by consent: (1) appeal allowed; (2) orders made by von Doussa J on 18 December 1998 be set aside; (3) the matter be remitted to von Doussa J on the issue of actual bias for rehearing. The Court further ordered that the costs of and incidental to the appeal and the costs of the actual proceedings at the original hearing be reserved on the rehearing of the actual bias question. Leave thereafter was given on 14 September 1999 to the applicant to amend his application for review to allege actual bias, and the application was duly amended. 7 The case of the applicant, however, is now advanced on precisely the same material as was placed before the Court on the first occasion. That material has been supplemented at the request of the respondent by making available to the Court a transcript of the oral hearing which occurred before the Tribunal on 14 April 1998. It is a fairly short transcript. In my view, it adds little to the inferences fairly to be drawn from the other information but it is not entirely without relevance to the case and I shall return to it. 8 The applicant's case, simply put, is that by considering the two decisions which were given by the Tribunal on 16 February 1998 and 23 April 1998 respectively the Court should infer actual bias. These decisions and the reasoning set out in each of them is described in my reasons for judgment given on 18 December 1998 and I do not propose to repeat it. 9 The test of actual bias has been canvassed by counsel for the respondent by referring to a number of recent decisions of this Court. Counsel referred to Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, in particular at 289 and 290. The Court was directed to the following observation of Finkelstein J in that case: "Where the courts have considered the question of actual bias the focus of the inquiry has been whether the decision-maker has brought a 'closed mind' to the inquiry". 10 The decision is also of significance for the view expressed by his Honour that whilst most often actual bias will result from an intentional state of mind, that will not always be so. His Honour observed at 290: "For so long as the possibility exists that bias may be unconscious there is no reason in principle why a claim should not succeed in that circumstance. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point in so far as the validity of the decision is concerned." 11 Counsel referred to a decision of a Full Court of this Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, and in particular to passages from the judgment of Wilcox J at 124 where his Honour posed the test as whether the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case. See also North J in that decision at pp 134 and 135. At p 135, North J referred with apparent approval to a decision of Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224. His Honour treated the authority as demonstrating that proof of actual bias by inference from the facts and circumstances of a case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed: "It's unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias." Moreover, Gooliah was taken as demonstrating that actual bias does not necessarily involve deliberate knowing or wilful prejudice against an applicant. 12 Finally, counsel relied on Jia Le Geng v Minister of Immigration and Multicultural Affairs (1999) FCA 951. At paragraphs 40 and 41 Spender J in expressing his agreement with the decision of R D Nicholson J in that appeal added his own observations, including that: "In my opinion, the test is plain. A decision-maker is biased if the decision-maker has made up his or her mind on the matter to be decided. If a decision-maker has prejudged the matter, a decision giving effect to that prejudgment is a biased decision. Actual bias is not made out if the decision-maker holds a view that is provisional or qualified. However, if the position in this case was that the Minister had formed the view that Mr Jia was of bad character or had formed the view that persons convicted of serious crime were of bad character, his decision of 10 June 1997 that Mr Jia was of bad character was a decision that was affected by actual bias." 13 Counsel referred to passages from the decision of Cooper J in the same case at paras 15, 16 and 17. It is apparent, however, that his Honour was in a minority in taking the view that a finding of actual bias required a factual finding of a state of mind. In the judgment of R D Nicholson J, his Honour at para 41 said: "It will be observed from this that for actual bias to be established there must be evidence of 'a closed mind to the issues raised'; 'preliminary views incapable of alteration'; prejudgment of a case at least in some respect, real although not necessarily intentional." His Honour at para 44, after reviewing a number of authorities, summarised the position as follows: "The correct test of actual bias is whether prejudgment has occurred - that is, beyond a firmly or even strongly held view to the point where the view is not open to change by the relevant facts falling for consideration." 14 I accept, and seek to apply to the circumstances of this case, the test as formulated by Finkelstein J in Bilgin, Wilcox and North JJ in Sun, and Spender and R D Nicholson in Jia Le Geng. 15 It was not necessary in the previous decision to decide whether the Tribunal was actually biased due to prejudgment. However, in the reasons for judgment given on the previous occasion I pointed out that in the first decision on the claim for refugee status by the applicant's estranged wife, in rejecting the explanation given for the late advancement of a claim for imputed political opinion, the Tribunal had passed judgment upon the plausibility of an important part of the present applicant's evidence in his case. Further, I observed that the Tribunal on the first occasion had rejected as lacking authenticity important evidentiary documents which the present applicant sought to rely on in support of his case. 16 I noted that in rejecting three of those documents in the present applicant's case the Tribunal relied on the reasons for doing so which it had given in rejecting the documents in the earlier decision. I expressed the opinion on that occasion that the findings which were made in the first case were findings made on the very same evidentiary material that the present applicant relied on, and that the findings that were made in the first case effectively predetermined the outcome of the present applicant's application. 17 I adhere to those views. Lest there be any doubt about my view, this seems the plainest case of prejudgment of the actual issues which would fall for decision in the present applicant's case by the Tribunal as constituted. In my opinion this is a plain case of there being actual bias. I think, with respect to the arguments to the contrary that have been put, it verges on the laughable to suggest that the decision-maker, having committed himself to the views expressed on the evidence and the probabilities of the case advanced in the first matter, would or could on the second occasion depart from those views. The case in the first matter was in substance the case of the present applicant, as the applicant's estranged wife based her claim for refugee status on political opinion imputed to her because of her husband's activities. 18 Counsel for the respondent has today urged the view that an inference of actual bias should not be drawn merely from a consideration of the reasons for judgment in the two matters. It is urged that it is necessary to go further to demonstrate not merely that the decision-maker had preconceived views about issues that might arise in the case but that the decision-maker evidenced a closed mind that was not open to persuasion to the contrary. To that end it was urged that the application should be dismissed unless it is possible to identify either in the transcript of the proceedings, or in the reasons, evidence of a closed mind such that the Court can find that the second hearing was merely a charade where the Tribunal went through the process of a hearing but with no intention of changing an opinion determined in advance. 19 In my view, it is not necessary to go that far, but in case I am wrong I have been taken to the transcript of the short hearing that occurred on the present applicant's matter. 20 On the hearing of the other application, the estranged wife put forward a statutory declaration from Mr Palwinda Singh seeking to support the claim of political activity by the present applicant. That statement was rejected. The present applicant produced Mr Palwinda Singh at the hearing and it is apparent from the transcript that the Tribunal understood that the witness was brought forward by the applicant as a person with direct knowledge of facts which would support, and in an important way, the case he sought to advance. 21 In my view, a reading of the question and answer process that then followed between the Tribunal and the witness does not indicate that the Tribunal was intent upon endeavouring to ascertain in a fair and meaningful way what information that witness may have been able to provide in support of the claim. If evidence is needed that the process followed by the Tribunal was one of form, not of substance, evidence to that effect is in the transcript. In my opinion, that transcript supports the view that as a matter of fact the Tribunal did proceed through the hearing with a mind that was influenced by the prejudgment of issues which had occurred in the earlier case. 22 In my opinion, the application should succeed on the ground now pleaded under s 476(1)(f). The application should be allowed. The decision of the Tribunal dated 23 April 1998 should be set aside. The matter should be remitted to the Tribunal for rehearing by a differently constituted Tribunal. 23 In my opinion the applicant should recover his costs of the application including the costs of the first hearing. He should also recover his costs of the appeal to the Full Court. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.