VAO v Minister for Immigration & Multicultural Affairs

The RRT decision in summary 7 The RRT set out, in its reasons for decision, the appellant's claims and summarised the evidence he advanced in support of those claims. Although some of the claims related to the appellant's brother's involvement in the UNP, the RRT made no reference in its decision in the appellant's case to any evidence given by his brother in his brother's case. 8 The RRT was prepared to find that the appellant "may have been a member of the UNP" and "may have suffered some harassment around the time of the 1997 elections, as this was common and localised". It otherwise disbelieved the appellant's claims about the extent of his political profile and his experience of adverse treatment at the hands of his political opponents. 9 The RRT placed no weight on the letters of support for the appellant written by UNP officials. It did not regard the newspaper cuttings as being of any assistance to his case. 10 The RRT formed an adverse view of the appellant's credibility in several material respects.

The issues before Gray J which remain live on the appeal 11 Gray J determined inter alia that: · it was apparent that the RRT had taken care not to take into account the evidence given by the appellant's brother, in his case, in relation to the appellant. It was probable that the way in which the Tribunal acted had led to a denial of natural justice to the appellant. Procedural fairness required that the RRT at least inform him that it did not propose to take into account the evidence in his brother's case when considering the evidence in his own case unless that evidence was formally placed before it. However, denial of natural justice was specifically excluded from the grounds available under s476 of the Migration Act 1958 (Cth) ("the Act") by s476(2)(a). · the RRT did not err in law by using "country information" which was not current at the time of its decision when arriving at that decision. At [78] Gray J said:- "The Tribunal was using the information it obtained to evaluate the truth of the applicants' claim as to what happened to them. The information was relevant to that issue. Counsel was unable to point to any obligation on the Tribunal to seek out, or to act upon, more recent information."

· an examination of the RRT's reasons, and of the way in which it had conducted its hearings in relation to the appellant and his brother, gave rise to "considerable disquiet" about its approach. It was clear that the appellant had not had what could be regarded as a fair hearing. The RRT had set out to ensure that he would be found not to be a person to whom protection obligations were owed, if it could reach such a conclusion. However, that left open the possibility that it would have found in his favour if it had been persuaded, against its inclination, that his case was good. In those circumstances it could not be said that the RRT was "invincibly biased".

The legislative regime 12 The legislation relevant to this appeal is the Act, in the form which it took prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001. This appeal consequently does not raise for examination the effect of the "privative clause" provisions inserted into the Act operative from 2 October 2001.

Separate treatment of cases 13 The appellant submitted that Gray J should have held that the failure to consider the evidence of the appellant's brother in the appellant's case resulted in the RRT's decision being affected by legal error. It was submitted that the RRT had excluded relevant material from its consideration and thereby erred in law. 14 At [74] in his reasons for judgment Gray J said: "The ground of error of law is not made out. It cannot be suggested that, in failing to take into account the evidence of the other brother in each case, the Tribunal failed to take into account relevant considerations in the sense in which that expression is used in the passage of Yusuf quoted above. Nothing in the nature of the jurisdiction exercised by the Tribunal under the Migration Act in relation to applications for protection visas suggests that it was obliged to take into account particular evidence available to it, as distinct from being obliged to consider the way in which each applicant put his case for a protection visa. Thus, there was no error of law of a kind identified in Yusuf." 15 We agree, with respect, with the views there expressed by his Honour. 16 In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 180 ALR 1 at [82], ALR 21-22, McHugh, Gummow and Hayne JJ said: "It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the tribunal): … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 17 The evidence of the appellant's brother in his case, if viewed as relevant material in the appellant's case, can be said to have been ignored by the RRT. However, it is another thing to say that relevant material has been ignored "in a way that affects the exercise of power". For that element to be satisfied it must be shown that the RRT was bound to take into account the evidence which it ignored; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. We can discern no basis upon which it can be said that the RRT was so bound. 18 We note that the RRT informed the appellant at the outset of the hearing of the material that it had before it, and invited him to place before it any further evidence. It was abundantly clear from what the RRT had said that the statement made by the appellant's brother was not part of the material that was before the RRT at that stage. At no time did the appellant in his case, or the appellant's brother in that case, seek that the RRT have regard to the evidence given by each of them when considering its decision in both matters. Each brother was accompanied by a solicitor at the RRT hearings. That solicitor was also a registered migration agent and could have been expected to invite the RRT to take into account material led in relation to one case when considering the other had it been thought appropriate to do so. 19 It also must be remembered that if the RRT had taken into account the evidence given by each applicant in the case brought by the other, it would have been bound to take into account not only those matters which supported each case but also those matters which were adverse to the interests of each applicant. 20 Counsel for the appellant also contended that the appellant was denied a reasonable opportunity to give evidence and present arguments before the RRT as required by s425(1) of the Act. That subsection provides: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 21 In Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56, (2001) 105 FCR 212 at [24], FCR 218, a Full Court held that an invitation to attend a hearing before the RRT satisfied the requirements of s425(1) of the Act. Win was recently followed in that respect by the Full Court in Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884 at [56]. Further as Gray J said in Chaddha v Minister for Immigration and Multicultural Affairs [2002] FCA 92 at [14]: "Section 425 in its current form has been considered in several authorities. It is clear that, in its current form, the section limits the obligation of the Tribunal to extending an invitation to an applicant and does not require the Tribunal to take further steps to ensure that an applicant avails himself or herself of the opportunity."

22 This aspect of the appellant's submission must be rejected.

Reliance on outdated information 23 Counsel for the appellant submitted that the primary judge erred in not finding that the RRT's decision involved an error of law (within the meaning of s476(1)(e) of the Act) by relying on country information which was out of date, given that the appellant had provided more recent material. 24 Whether or not an error of this type amounts to an error of law within the meaning of s476(1)(e) need not be considered. The short answer to that submission is that the RRT said that it did take "into account all the information lodged by the applicant including that lodged on 23 June 2000". (see p.15(9) of its reasons). The RRT continued at p.16 by saying that it had regard to all newspaper cuttings lodged by the appellant. It concluded this section of its decision by saying that:- "The applicant's adviser was given until 23 June 2000 to respond further to the information on political violence and the legal situation in Sri Lanka, and his response was received on that date, together with further clippings. The Tribunal has regard to the submission and the accompanying information and the comments in relation to the independent country information." Later in its reasons the RRT said at p.25 that: "The Tribunal concludes that the material lodged by the applicant, including that lodged post hearing on 16 May and 23 June regarding specific acts of violence, does not contradict the material on which the Tribunal relied. The Tribunal relied on the independent country information above, and notes that the information from DFAT has been consistent throughout the relevant period." 25 We see no merit in the proposition that the RRT did not base its conclusions on current material or in the contention that it failed to determine the facts as at the date of its decision. In any event, as Gray J correctly observed, there was no obligation on the RRT to seek out or act upon more recent information.

The actual bias point 26 Section 476(1)(f) of the Act provides that: "Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(f) that the decision was induced or affected by fraud or by actual bias."

27 Counsel for the appellant submitted that Gray J had erred in concluding that the findings that he had made regarding the conduct of the proceeding before the RRT (to which we have referred at [11]) meant only that there was apprehended bias, and that his Honour ought to have determined that the RRT's decision had been "induced or affected … by actual bias". He accepted that there were difficulties with that submission. Those difficulties arose chiefly by reason of his Honour's observation that notwithstanding his "impression" that the RRT had "set out" to ensure that the appellant would be found not to be a person to whom protection obligations were owed, it had left open the possibility that it would have found in his favour, if it could be persuaded, against its inclination, that his case was good. 28 In Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 178 ALR 421 Gleeson CJ and Gummow J said at ALR 438: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."

See also the reference by Kirby J in Jia at ALR 449 to an "unalterable prejudgment against an individual". 29 It is clear that Gray J did not regard the RRT as having demonstrated a commitment to a conclusion already formed which was incapable of alteration whatever evidence or arguments may be presented. His Honour said as much in his reasons for judgment. Applying the test laid down in Jia that would have meant that actual bias had not been established. 30 Counsel for the appellant sought to distinguish Jia by submitting that the passage from the joint judgment of Gleeson CJ and Gummow J was confined to actual bias constituted by prejudgment, and had no application to actual bias occasioned by some other cause. He relied in support of that submission upon a passage in the judgment of Hayne J in Jia where his Honour drew a distinction between bias by prejudgment and bias occasioned by some other cause. His Honour said at [183]: "To examine those questions it is necessary to consider more closely what is meant by "bias" and "apprehension of bias". "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures". This matter concerns only bias by prejudgment and I confine my reasons to that subject. The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered." 31 Counsel for the appellant submitted that the findings made by Gray J in the instant case went beyond mere prejudgment on the part of the RRT and amounted to bias occasioned by some other cause. In response to questions from the Court he was unable to identify with any precision the nature of that other cause. However, he submitted that in a case not confined to prejudgment it was no answer to a claim of actual bias that the decision maker had not demonstrated a mindset that was incapable of alteration whatever evidence or arguments might be presented. He contended that the formulation of actual bias adopted in the joint judgment in Jia did not apply in those circumstances. 32 We do not accept that submission. It fails at the outset. There is nothing in the reasons for decision of the RRT, or in the transcript of the proceedings before it which suggests that there was actual bias occasioned by any cause other than prejudgment. We consider that the observations of Gray J regarding the conduct of the RRT, though expressed in strong language, were made against the background of an impression on his Honour's part of prejudgment, and not in the context of any of the other forms of actual bias to which Hayne J referred. 33 The finding by Gray J that, notwithstanding the RRT's preconceptions regarding the appellant's case, it was nontheless prepared to be persuaded to find in his favour was, therefore, a finding which, in accordance with Jia,negated prejudgment in the sense required for proof of actual bias. To adopt the words of Kirby J in Jia (at ALR 450), actual bias had not been "clearly proved" or "firmly established". 34 Counsel for the appellant also criticised the reasoning of Gray J by reference to his Honour's use of the word "invincible" when describing bias. There is no substance in that criticism. His Honour was using the adjective "invincible" in lieu of the adjective "actual" to describe the bias to which s476(1)(f) of the Act is directed. Actual bias and invincible bias are, in our view, interchangeable terms. The latter expression is more frequently used in an industrial relations context, especially where the actions of members of internal disciplinary tribunals in trade unions are under examination; see for example Australian Workers Union v Bowen (No 2) (1948) 77 CLR 601, Adlam v Bauer (1999) 93 IR 114 at 117-118, [1999] FCA 1504 at [9] to [24] and Haritou v Skourdoumbis [2002] FCA 116 at [13]. However, nothing turns upon the choice of adjective in this case. 35 The use of the term "invincible" instead of "actual" can be compared with the use of the terms "apprehended", "imputed" or "ostensible" when describing bias of the type where there is a reasonable apprehension that a person, tribunal or court may not bring an impartial mind to the resolution of a matter; see for example Johnson v Johnson (2000) 201 CLR 488, [2000] HCA 48. 36 In expressing the views that he did regarding the lack of fairness in the RRT's conduct of the hearing, Gray J seems to have taken into account the submissions made to him which were recorded at [84] of his reasons. It is by no means clear from his Honour's reasons that he accepted all of the criticisms which were levelled at the RRT. 37 It is unnecessary for us to express any view as to whether, as Gray J considered, the appellant was denied a fair hearing by the RRT. As his Honour correctly appreciated, apprehended bias is not a ground of review which is available in this Court under Part 8 of the Act.

38 The appeal must be dismissed. We see no reason why costs should not follow the event notwithstanding the fact that Gray J did not make an order for costs at first instance.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Marshall and Weinberg JJ.

Associate: Dated: 27 February 2002 Counsel for the Appellant: Mr S McLeish

Solicitor for the Respondent: Australian Government Solicitor