Sultan v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") on 3 April 2000. By that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, to refuse to grant a protection visa to Mr Aamer Sultan, the applicant. There were originally three grounds for the application: firstly, the decision was affected by actual bias; secondly, there was no evidence to justify the decision, and; thirdly, the decision involved errors of law. The written submissions of the applicant narrowed these grounds and, upon the matter coming on for hearing, counsel for the applicant informed the Court that he was only relying on the ground of actual bias. Factual background 2 The applicant is a doctor who practised medicine in Iraq and whose family are Shiite Muslims. He arrived in Australia, without a passport, on 19 May 1999. He immediately made a claim for refugee status. The hearing occurred before the Tribunal on 16 September 1999 and the decision was given on 3 April 2000. 3 The first part of his claim involved a complaint that he had been denied the opportunity to undertake post-graduate studies because of his background, which included his father's imprisonment in the 1960s on account of his membership of the Communist Party, his mother's Iranian origin and the applicant himself having refused to join the ruling Ba'ath Party. 4 However, the major claim was more specific. The applicant's account was that he was not particularly active in the advancement of the Shiite cause until he was posted to work in a hospital in Kerbala, a city which is holy to members of the Shiite faith. He was in that city for a year as a student and later returned there in 1998. During that time he became more aware of his own Shiite background and concerned about the injustices that he perceived Shiites were suffering at the hands of the predominantly secular and authoritarian rulers of his country. He was approached to help Shiite rebels by clandestinely treating wounded guerilla fighters and, in time, was asked to keep important and confidential documents of the guerilla forces in his own quarters at the hospital. 5 About a month before he arrived in Australia, he had been attending to some unwell rebel fighters and was returning to that hospital. As his vehicle approached the hospital he saw a good many vehicles, which he recognised as belonging to the Iraqi Intelligence Service Forces ("IISF"), outside the hospital and he feared that they had come for him. He did not stop, but continued on to another hospital where he had also worked on occasions. There he learned that the IISF had discovered the documents and were looking for him. He returned to Bahgdadwhere he arranged to escape to Turkey. In the meantime, his father had been arrested, detained and questioned about him, but released after two days. Illegal arrangements were made for the applicant to fly to Singapore and then to Australia. Actual bias 6 The applicant says in his affidavit that he had some fluency in written and spoken English but had the assistance of an interpreter during the hearing before the Tribunal. In the course of the hearing there was a short adjournment. Thereafter, a conversation to the following effect took place: "Member Kelleghan: Mr Sultan, as long as you were aware of the … "IISF" and resources 'facilities', how could you explain why they didn't send [a] few vehicles to arrest you at the other hospital as well? Mr Sultan: I haven't worked with - within - the IISF to know - estimate - exactly or even roughly how much is their facilities or recruits; that is members. Member Kelleghan: Would you explain more? Mr Sultan: For example, I don't know exactly or roughly how many are working, let's say, in [the Department of Immigration and Multicultural Affairs, "DIMA"], because I've never worked within DIMA before. Likewise, I can't tell you about the IISF." The applicant claims that the Tribunal member then responded abruptly and, in a threatening tone of voice, while pointing to the applicant, said: "Don't be smart and try, ever, to compare the IISF with DIMA". 7 The applicant says that he was "really freaked out and confused" by the Tribunal member's tone of voice and gesture. Then he turned immediately to the interpreter and asked for an explanation. The interpreter explained that the Tribunal member had understood the applicant's explanation as an insult, had been offended by it, and that it was for that reason that the member had lost control and replied in such a harsh manner. The applicant asked the interpreter to explain to the member that he had never meant any insult and that this had been his "very basic way of giving an example as close as possible to the member's job and atmosphere in order to be understood and comprehended". This was translated to the Tribunal member and the hearing continued. For a short period after the break the hearing was not recorded on audiotape and therefore the above conversation was not recorded; there is nothing to suggest anything sinister about that. 8 No other complaint is made about the Tribunal member's conduct during or after the hearing, but it is said that in her written reasons the Tribunal member relentlessly decided every important factual point, bearing on whether the applicant might be a refugee, against him. 9 Apparent bias is not a ground of review under the Migration Act 1958 (Cth) ("the Act"). In consequence, there has been something of a renaissance of the law relating to actual bias, which is a permitted ground for judicial review under s 476(1)(f). In other areas of administrative law, with apparent bias alive and well, there is very often no reason to consider anything more than whether the appearance or suspicion of bias has been shown. That is not to say that this Court should view claims of actual bias with any degree of cynicism or undue suspicion, but it is clear that a finding that a person charged with making very important administrative decisions, such as those made by a Tribunal member, has shown himself or herself to be unable to bring a fair mind to bear on the resolution of the issue, is to impute a serious dereliction of duty to that person. That is so, notwithstanding that it is not necessary to show anything like moral opprobrium to warrant a finding of actual bias; it would be a rare case, indeed, in which a decision maker actually intended to be quite unfair in the consideration of the matter. A finding of actual bias should not lightly be made. Moreover, it is clear from the judgments of Wilcox and North JJ in Sun v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71, in the words of Wilcox J at 123, that: "Any particular matter relied on as showing actual bias must be considered in the context of the whole hearing... [and] it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm." Likewise, at 135 North J said: "Proof of actual bias by inference from the facts and circumstances of the 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. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias." 10 As I have indicated, the applicant does rely on a single incident. If matters happened as alleged by the applicant, it seems to me that the interpreter had correctly understood the Tribunal member's reaction as one of offence. However, the clear, comprehensible and cogent explanation of his remark, which the applicant promptly made and which was relayed to the Tribunal member, is very likely to have made her understand that she had misapprehended the purpose and intent of what he had earlier said. This appears to have calmed the situation and dealt with any confusion. It verges on the inconceivable that the Tribunal member would not, by the time she came to write the decision, have reflected calmly upon the issues before her. 11 Counsel for the applicant also drew attention to other matters to support the bias claim. The Minister imposed a quota, limiting intake under the Humanitarian Program to 12,000 persons. It is a matter of record that the Minister has been publicly critical of the performance of the Tribunal and of certain unnamed members of it. The lack of security of tenure of Tribunal members and the likely strong influence of the Minister in the Cabinet discussions leading to whether such members are to be reappointed by the Governor General may not be apt best to encourage confidence in the ability of Tribunal members to decide cases without, as it were, looking over their shoulders. However, Parliament has decreed that such are the relationships prevailing. It is a far cry from observing the lack of theoretical perfection in these arrangements to inferring that those relationships are likely to induce such a desire to protect the respondent's department's reputation as to precondition a Tribunal member to be unable to fairly consider the case of an applicant, even when the Tribunal member thought that the applicant had made an offensive comparison between that Department and the infamous intelligent services of Iraq. 12 It is true that the applicant's credibility on the crucial issues was doubted by the Tribunal member. However, these findings did not depend to any significant degree on questions of demeanour, but very much more on a detailed consideration of the information concerning Iraq from the independent evidence that was available. The Tribunal member was critical, however, of his manner of giving evidence, and she said that it raised questions about his credibility. She explained this view in some detail, and each of the matters offered in explanation, I am bound to say, seems to me to be of a character upon which an unbiased Tribunal member might well rely. 13 I do not think it can be said that the method of reasoning adopted by the Tribunal demonstrated that, whatever the applicant's evidentiary case was, the Tribunal member had put herself, because of the incident referred to, in a situation where she could not fairly see the force of it; cf Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228. Nor do I get the impression that the Tribunal member was intent on rejecting the applicant's claims at all costs. 14 It is apparent that I have been able to deal with the matter on the assumption that the applicant's affidavit is a reliable account of what occurred. It was not conceded by the respondent that the affidavit was reliable, although it is conceded that there was some incident of irritation on the part of the Tribunal member with the applicant. It was convenient, given my tentative view of the matter, to have the matter argued, assuming the truth of the affidavit. It has not been necessary for the applicant to be cross-examined, nor for the Tribunal member or the interpreter to be called, in relation to the matter. Disposition 15 Having read the written submissions of the parties, it seems to me that counsel for the applicant was correct in abandoning the other grounds of attack on the Tribunal member's decision and, unless one assumes bias, there is nothing legally objectionable about the Tribunal member's approach to her task. For the reasons given above the Tribunal's decision was not infected with bias. Therefore, the application will be dismissed. 16 I realise that this is a decision of very great importance to the applicant. I have been able to give my reasons without reserving my decision because I have, as is common, pre-read the Tribunal member's decision, the factual material referred to by counsel in their written submissions, and have thought about the matter to some extent. I would not like it to be thought that, in a matter of such profound significance for the applicant, the Court has not considered the matter with such care as I am capable of. 17 While costs are discretionary, the ordinary rule, of course, is that they should follow the event. However, an untoward incident did occur and the applicant's fate is at stake. Moreover, the exchange was not recorded. There is, as I have indicated, nothing sinister about this, and such mistakes are commonplace. However, it did have the consequence that the applicant and his legal advisers were left to do their best with his unaided account of the matter. Had they been available, the tapes might have strengthened his case, weakened it, or left it neutral. In any case, his legal advisers would have had the advantage, which it was desirable that they should have had and which proper procedures mandate that they would have had, of checking the matter. If they had then concluded that the matter was not reasonably arguable, they would presumably have told the applicant that, with some authority. While I have held against the applicant, the case was not unarguable. It seems to me that it is a case where the parties can properly be left to bear their own costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.