WAAH v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT LEE J: 1 This is an appeal from a decision of a Federal Magistrate (Driver FM) which dismissed an application for orders under 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal ("the Tribunal") that affirmed a decision of a delegate of the respondent ("the Minister") that the appellant not be granted a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that the appellate jurisdiction in this matter be exercised by a single Judge. 2 The appellant, an Iranian national, 34, who speaks no English, was unrepresented in the hearing before his Honour and presented his case through an interpreter. On the appeal the appellant was represented by pro bono counsel appointed pursuant to O 80 of the Federal Court Rules. 3 The appellant entered the "Australian migration zone" as a passenger on a small boat on 2 November 2000. At the time he did not hold a visa issued under the Migration Act 1958 (Cth) ("the Act") and pursuant to ss 13 and 14 of the Act became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act the appellant was taken into "immigration detention" and held there at all times thereafter. 4 Before dealing with the arguments of counsel it is appropriate to refer to the relevant facts and provisions of the Act. 5 The appellant was interviewed by an officer of the Minister's Department on 13 November 2000. The interview was conducted through an interpreter and notes were made by the officer on a standard printed form. It may be assumed that the usual practice was followed and that the interview was recorded on tape. No transcript of the interview appears to have been made from that recording. 6 On or about 4 June 2001 the appellant applied for a protection visa under the Act. The appellant was interviewed by another officer of the Minister's Department on the following day, 5 June 2001. The reasons for decision provided by the Tribunal state that the Department's file was before it when it made its decision and that the file included a record of that interview. That record was not part of the papers put before the Court. 7 On 17 July 2001 a delegate of the Minister, probably the officer who conducted the interview on 5 June 2001, refused to grant a protection visa to the appellant. The appellant applied under the Act for review of the delegate's decision by the Tribunal. The reasons provided by the Tribunal state that written submissions on behalf of the appellant were lodged in support of the application for review. It may be assumed that the submissions were prepared by solicitors authorised under the Act to provide advice to the appellant. Those submissions were not part of the papers placed before the Court. 8 The Tribunal conducted a "review hearing" on 27 August 2001. The papers before the Court do not reveal how that hearing was conducted but if it followed the usual pattern of such hearings involving applicants detained in the Curtin Detention Centre in north-west Australia, as was the appellant, it was possible that the Tribunal did not conduct a hearing in the presence of the appellant. The Tribunal could have been situated in the Tribunal's premises in Sydney and the appellant present at a "telecentre" in Derby. An interpreter may have been with the Tribunal in Sydney or may have been in Melbourne, perhaps participating in the proceeding by telephone link. The appellant's advisor may have been present at the Tribunal premises in Sydney or connected to the proceeding by telephone. The appellant and the Tribunal would have been connected by videolink. Whether the video transmission of the hearing was recorded is unknown. It may be assumed that there was an audio recording of the proceeding. A transcript of that recording was not part of the papers put before the Court. 9 On 2 October 2001 the Tribunal affirmed the decision of the delegate. 10 On the hearing of the appeal a submission was made by counsel for the appellant that apprehended bias arose from the manner in which the review was conducted by the Tribunal. The material omitted from the Tribunal record put before the Court, referred to above, may have been germane to that submission but no issue was raised in that regard. 11 The relevant provisions of the Act relating to determination of an application for a protection visa are summarized in the following paragraphs. 12 Section 65 of the Act provides that if the Minister is satisfied that, inter alia, criteria prescribed for a visa have been satisfied the visa applied for is to be granted, and if not so satisfied the grant of the visa is to be refused. 13 At the relevant time subs 36(2) of the Act provided that it was a criterion for a protection visa that the applicant be a non-citizen in Australia to whom Australia has "protection obligations" under the "Refugees Convention as amended by the Refugees Protocol". The international instruments there referred to are defined in s 5 of the Act as the "Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and the "Protocol relating to the Status of Refugees done at New York on 31 January 1967." The treaties are referred to collectively hereafter as the Convention. Australia is a Contracting State under the Convention. On 1 October 2001 subs 36(2) was amended by adding words that provided that satisfaction of the criterion turned on the Minister's satisfaction that the applicant is a person to whom Australia has protection obligations. Having regard to the terms of s 65, that amendment does not appear to have altered the nature of the decision to be made under s 65. 14 The term "protection obligations" is not used in the Convention and is not defined in the Act. It may be accepted that, generally, and subject to any qualification upon its meaning effected by subs 36(3), the expression means the responsibilities Australia has undertaken as a Contracting State with the respect to a person who is a "refugee" as defined in the Convention, namely a person who owing to well-founded fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion, (described hereafter as "a Convention reason"), is outside the country of his or her nationality and unable, or, owing to such fear, unwilling to avail himself or herself of the protection of that country, not being a person to whom, by reason of other provisions of the Convention, the protective provisions of the Convention did not apply. 15 The Convention imposes numerous obligations on a Contracting State in respect of a refugee. The clear intent of the Convention is to protect a refugee from risk of persecution by binding a Contracting State to extend to a refugee within the territory of that State rights that satisfy that object of the Convention and assist the refugee to become assimilated within that State. In summary, a Contracting State undertakes to: a) assist a refugee within its territory; [Art 25 (Administrative assistance), Art 27 (Identity papers), Art 28 (Travel documents), Art 30 (Transfer of assets), Art 34 (Naturalization)]; b) treat a refugee; i) without discrimination [Art 3 (Race, religion or country of origin), Art 31 (Unlawful entry)], and; ii) in specified respects, as favourably as a national of that country [Art 4 (Freedom to practice religion), Art 14 (Protection of intellectual property), Art 15 (Right of association), Art 16 (Access to courts), Art 17 (Right to employment), Art 20 (Rationing), Art 22 (Elementary education), Art 23 (Public relief), Art 24 (Labour and social security laws), Art 29 (Fiscal charges)] and; iii) in other specified respects, no less favourably than an alien in that country is treated in relation to those matters [Art 13 (Acquisition of property), Art 18 (Right to establish a business), Art 19 (Right to practise a profession), Art 21 (Right to housing), Art 22 (Secondary, tertiary education), Art 26 (Freedom of movement)]. 16 All of the foregoing obligations imposed on a Contracting State by the Convention are beneficial provisions with respect to refugees that could be said to come within a broad meaning of "protection obligations". However, for the purpose of construction of subs 36(2) it is enough to have regard to the direct obligations to protect refugees imposed on a Contracting State by Arts 31-33 of the Convention, namely, protection of a refugee against expulsion or refoulement by a Contracting State. 17 The appellant's claims centred on his apprehension that if he were returned to Iran he would suffer persecutory conduct at some time in the future, having regard to the harm of that nature that had been suffered by him in the past and to the persecutory treatment meted out by Iranian authorities to members of the extended family to which the appellant belonged. The "Convention reason" for such conduct would be either political opinion imputed to the appellant or to the appellant's family by the regime, or that the appellant was part of a particular social group, to wit, the Bakhtyar family, perceived by the regime to have had links with, and allegiance to, the monarchy ousted by the regime. 18 At the initial interview the appellant said he had had problems with Iranian authorities. He stated that in 1986 he had remonstrated with a Pasadaran (Revolutionary Guard) who had been beating a child in public over an issue of dress. As a result he had been detained for three weeks and whilst in custody he had been beaten every day. He had then been brought before a court, presumably the Revolutionary Court, which had ordered that he be subjected to a punishment of 15 lashes. He said he had left Iran for Cyprus in 1993 with the intention of applying for asylum in the United States but the plan arranged and supervised by an agent had gone awry upon entry into Cyprus when the applicant became separated from the agent who held his passport. The appellant was handed over to Iranian officials who had mistreated him and returned him to Iran where he was banned from departing Iran for two years. He said he hated the Iranian government because of the way he had been treated. He was terrified of being imprisoned and badly beaten if returned to Iran. 19 In support of the application for a visa in June 2001 the appellant supplied a further statement which included the following: "I arrived in Malaysia on 17 September 2000 and I was turned around from the airport and sent straight back to Iran. My passport was expiring within 20 days and I was denied entry. Back in Iran the airport authorities interrogated me and delivered me to Nehad Reyast Jamori (the Iranian secret service). They asked me the reason for my going to Malaysia and then finally let me go. I got the passport extended by bribing a person in the passport office (a person I knew) and then on 24 September 2000 I left again for Malaysia. I wanted to meet Daryoush Arjomand who is a political connection whose name I had been given. This man mainly lives in the US and he was in Malaysia to see some people. The activity Daryoush is organizing in the US is to activate people to oppose the Iranian regime, not politically but culturally. My father was an officer for the secret service of the Shah (Sawak) and so we had connections at a high level with previous government officers. My maternal grandfather and two of his brothers were in a partnership with the Shah's brother in some Iranian mining activities. After the Islamic Revolution the following people Temsar Mahwi, Khairi, Mahandis Stoda, Mahandis Payrawi, Mustofi, Jenab Deeba, Dr Nari Mousa and Dr Eraj Iqbal were all arrested and all our accounts were frozen. These were all relations and people associated with our enterprises. My father's assets were seized and in 1980 my maternal grandfather died due to the torture he received in the Revolutionary government prison. In 1983, two other brothers of my maternal grandfather were executed by the Revolutionary government. After 8 years in prison my father was released in 1986. He was expelled to another city in Iran, Esfahan, for 2 years, until 1988 when he returned home. My father could not get his position back working for the government and as we had relatives abroad they used to send money to us in my mother's account so as we could survive. My father knew people from the previous government who used to help us by sending money secretly to him. My father had no permission to go abroad. A person called Mosawee had a contract with an oil company and he would help my father by hiring him for part of the work. My father was not able to have projects in his own name. Due to our previous connections and the popularity of my father, I started to establish an anti government movement - "Karhaifarhangi" - the main activities of this group were to contact people & hold meetings & to encourage some sort of united front against the government. These were all held in secret. I started these activities at the end of 1999 and started travelling to make contacts. I had managed to get a passport in 1993 - I talked to an agent who said he would take me to Cyprus and from there I could be sent to America. I trusted him and handed him my passport as requested but when we arrived at Cyprus airport, at the checkpoint, I was questioned and told the authorities I had been involved with the previous government and was a part of the Bakhtyar family. The smuggler had gone ahead with 5 other people who were with us and he never returned with my passport. I was surrended [sic] to the Iranian Embassy and after interrogation, I was beaten, my nose was broken and I was then sent back to Iran to be dealt with by the Iranian secret service. They asked me to sign that I had lost my passport. I was detained for 2 months and allegations were made that I had made anti-government connections abroad. At the end of this time I was released. I signed a form with the Secret Service to present myself as a reporting condition of my release. For 2 years I was prevented from travelling outside Iran. I paid a bribe to an official who took my name off the list of those who could not travel. I then obtained a passport 6 months before the expiration of my 2 years ban on travel. In 1995, I went to Turkey and I stayed there 25 days. I met Behroz Rahbary in Istanbul, a friend of my father, who was supposed to send me off to another country. In the meantime my father had had a heart attack so I returned back to Iran. I was in Iran for the years after I returned from Turkey but was unable to work and I was living under threat from the Revolutionary government's secret police. I had to look after my father for two and a half years because my older brother is a medical doctor and my sisters are all civil engineers and they have no time to care for him. We could not trust any of the medical or nursing staff to look after my father and so with the intervention of my doctor brother, my father was taken back home. In 1998, one of my father's close friends, Froher, and his wife were brutally killed by the government. This man was in secret consultations with my father before he was killed and in late 1998, six people from the secret police came to our house in the night. They humiliated our family and threatened us with death. They were in plainclothes and they took my father away with them. My mother went to complain at the police station the next day and she was told they would follow the case. After 2 days a person rang to say we could visit my father in a preordained place. We were told to go to a park at midnight and we saw my father. My father was under arrest for 35 days and after this he was released. We were intimidated by the regime and felt we could not go anywhere without risking being picked up by the police. We were invited to a wedding party by one of our relatives: I was the only one to go. I met a woman there called Lida Qurbni whose opinions were similar to my own and we continued a relationship. We started an "ideas" group under the supervision of my father and the consultation of my brother which was focused on anti-government feelings. There were 5 of us including Lida, Reza Boostani (my brother), Sejamak Baworzad, Ramid Salehi and Seyamak Salehi. My father did not want to include Aresh Khairy. All the above people, including my father, have now been arrested, since I left Iran. When I was last in contact with my mother (2 or 3 weeks) ago, she told me that I [sic] would never see me again because if I come back I will be arrested like the others. She has no documentation about their disappearance. When I contacted the family from Malaysia in September 2000, I was told by my mother that my father and my brother had been arrested and that if I returned I would be facing the same fate. She told me that Reza (my brother) wanted to avoid military service and had escaped from the military barracks and had been arrested. After his arrest, the rest of the group had been all taken into custody. At that point I decided to organize my trip out of Malaysia to find a safe place and seek asylum. I could not make contact with the man in Malaysia who I had originally gone to see because he had had to leave Malaysia before I got back from Iran the second time. I met a person called Ali and he introduced me to a smuggler and from there went to Indonesia and then got the boat to Australia. I was concerned not to say too much in the first interview and did not mention names, connections and relationships because I am fearful and have had many bad experiences from the past. I was very scared of being interviewed and consequently said very little. Now I realize this was a mistake and that I am in a safe place and I should have said the whole story. I am claiming asylum from Iran on the grounds of suffering political persecution and I will face imprisonment and probable execution if I am returned. I belong to a family that has been identified since the fall of the previous government with activities against the present Iranian government. Relations have been imprisoned and executed and I have been detained on several occasions. I am always under suspicion and can never obtain protection from the current Iranian government." 20 Shortly before the "review hearing" conducted by the Tribunal on 27 August 2001 the Tribunal forwarded to the appellant, by facsimile transmission, a letter which, in part, read as follows: "The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a Protection Visa. The information is as follows: When you were interviewed upon arrival in Australia you did not indicate that you or your family members had any ongoing problems with the Iranian authorities. In addition, you stated that neither you nor your family had been involved in any political activities in Iran. This information is relevant because it affects the credibility of your later claims. You are invited to comment on this information. Your comments are to be given at an interview between you and the Tribunal Member reviewing your case. The interview will be held in conjunction with the hearing of your case." 21 No translation of the letter of the letter was forwarded to the appellant and it appears to have been assumed that by some means or another the appellant would obtain translation of the document. 22 Shortly after the "review hearing" on 27 August 2001, namely on 6 September 2001, the Tribunal forwarded another letter to the appellant in similar terms: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa. The information is as follows: When you were interviewed upon arrival in Australia you indicated that you were banned from leaving Iran for two years after your return from Cyprus. However, you did not claim that you had served any time in detention in Iran because of your travel to Cyprus. You also indicated that the only time you had served in prison had been as a result when you had harassed a security officer in 1986. This information is relevant because it affects the credibility of your later claim to have been detained for two months. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by no later than 13 September 2001. 23 Again, no translation of the letter was provided to the appellant. The letter was forwarded to the appellant by facsimile transmission. 24 On 17 September 2001, by facsimile transmission, the appellant provided the following English translation of his response to the Tribunal: "Dear Sir/Ms Hereby I would like respectfully explain some matters which didn't let me to state my whole claims at initial entry interview. I lived in a country which full of palpitation and terror and regarding to the fear which I brought with myself and hard situation that was result of the treatment of the detention Authorities, I couldn't state all my statements. It is noteworthy that I had a very bad experience about Cyprus's police, therefor I was at the same fear to be delievered [sic] to Iran, as Cyprus polic [sic] did. Even my fear was increased as I heared [sic] about good term relations between Iran and Australia. I hope you will agree with me that with so many thoughts in my mind, I was entitled not to be persuade to the interviewer, which I ask you please listen to my tapes and find out my fear in my voice when I was answering to questions. In addition, in my case officer session, and meeting which I had with my solicitor befor [sic] my interview, I have mentioned clearley [sic] that I have been under arrest of Iranian Information and Security Forces and was detained for two months, as the officials of Iranian Embassy delivered me to these people, and they introgated [sic] me in that period that I have explained in my interview perfectly." 25 The reasons provided by the Tribunal set out the following conclusions in respect the appellant's claims: "In my view, significant aspects of the [appellant's] evidence were internally inconsistent, inconsistent with the independent evidence and vague. Having observed the [appellant], I am of the view that his manner of giving evidence was particularly evasive. I am of the view that the [appellant] tried to avoid answering questions that he did not wish to answer. He also appeared reluctant to give specific details about his claims. I do not consider the [appellant's] evidence to be credible or reliable. I do not accept that the [appellant] was involved in activities with a pro-monarchist group which produced and distributed audio and video cassettes of speeches made by Reza Pahlavi and the former queen, that members of his family have been arrested because of their involvement in this political group and that he is wanted for arrest for this reason. Firstly, the [appellant] made no mention of involvement in any such activities when he was interviewed upon arrival in Australia. Nor did he suggest that members of his family had been arrested or that he was wanted for arrest for political reasons. The [appellant] claims that he did not mention these matters because he was scared of the interviewing officer. I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers' previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpreting errors. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview. However, in this case the [appellant] was told that the interview was his opportunity to provide reasons why he should not be removed from Australia. He was also told that if he said anything different at a later interview, this could raise doubts about his credibility. During this interview the [appellant] indicated that he left Iran because there was no freedom. He stated that people are not treated like human beings and that his clothing was always an issue with the authorities. The [appellant] specifically stated that neither he nor his family members had been involved in any political activities. The [appellant] stated that he did not mention his claim that he was wanted for arrest because of his involvement in a political group because he was afraid of the interviewing officer. I do not consider this explanation convincing. In relation this, [sic] I note that during his arrival interview the [appellant] referred to having been imprisoned for three weeks and then sentenced to fifteen lashes for harassing a security agent. He also discussed his travel to Cyprus and the fact that he was banned from leaving Iran for two years after he was returned. In my view, it is implausible that the [appellant] would mention these matters if he was afraid of the interviewing officer. Furthermore, I consider it implausible that the [appellant] would refer to incidents which happened a number of years previously and fail to refer to mention more recent problems, however tentatively. I note the [appellant's] adviser's submissions. However, in my view, the [appellant] had sufficient notice that the Tribunal would be asking for his comments in relation to his failure to raise certain matters at this entry interview. In relation to this, the appellant was already on notice that this was an issue in his case as he had been questioned about the matter during his interview with the delegate. The appellant's adviser asked that the text of the interview be made available so that the assertions made on the basis of the interview could be tested. However, what is contained in the text of the interview was put to the appellant during the hearing. During the hearing the [appellant] did not deny that he had said the things set out in the arrival interview, or claim that he raised his more recent claims during the arrival interview. In my view, no purpose would be served by providing the [appellant] with a copy of the interview record. Another problem with the [appellant's] evidence was it vagueness. For example, the appellant appeared to have great difficulty explaining the political philosophy which underpinned the group to which he supposedly belonged. In addition, the appellant had a tendency to change his evidence and to try to avoid answering questions. For example, at the beginning of the hearing, the [appellant] stated that he had lived at the same address all his life. However, he then claimed that his family had to move around a lot after the Revolution. In addition, when I asked the [appellant] where he was living in the period before he left Iran, the [appellant] appeared reluctant to answer the question and required considerable prompting before he would provide a response. Overall, the manner in which the [appellant] gave evidence suggested that he was unwilling to provide full details in relation to his circumstances. I am of this view even taking into account the [appellant's] evidence that he had been on hunger strike prior to the hearing. A further difficulty I have with the [appellant's] evidence that he was involved with a pro-monarchist group is that the [appellant's] claim in this regard is inconsistent with the independent evidence before me. The independent evidence, which I accept, suggests that notwithstanding claims made by monarchist organisations overseas, monarchists groups are not in fact active in Iran. Overall, I find the [appellant's] evidence in relation to his claimed political activities in Iran to be unpersuasive. I do not accept that the [appellant] was involved with a group which was distributing recordings of speeches made by Rez Pahlavi or the former Queen. I do not accept that he appellant's family members have been arrested because of their alleged involvement in such a group. I do not accept that the Iranian authorities want to arrest the [appellant] for this reason. I am of the view that the [appellant] has fabricated his claims in this regard in an attempt to create for himself the profile of a refugee." 26 The Tribunal accepted that the appellant had been detained in 1986 for three weeks and sentenced to fifteen lashes as claimed, and presumably accepted that he had been beaten daily whilst detained. Perhaps disingenuously the Tribunal suggested that the treatment suffered by the appellant was not other than punishment duly applied for a breach of criminal law. 27 The Tribunal accepted that the applicant had travelled to Cyprus with the intention of proceeding to America to claim refugee status and accepted that he was returned to Iran as claimed. The Tribunal was uncertain whether the appellant was mistreated in Cyprus as alleged. The Tribunal did not accept that he was detained in Iran upon his return from Cyprus. 28 The Tribunal accepted that maternal relations of the appellant had been business associates of the brother of the Shah of Iran and that the appellant's grandfather and two uncles of his mother had been arrested and their assets frozen after the existing regime overthrew the regime of the Shah in 1979. The Tribunal accepted that the grandfather had been imprisoned and the uncles had been executed. 29 The grounds in support of the appellant's application for review as understood by his Honour were taken to be that the Tribunal had identified or addressed a wrong issue or had ignored relevant material or relied on irrelevant material. (See: Craig v South Australia (1994) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179.) Although the learned Magistrate determined the application before the High Court delivered its judgment in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, and settled the construction of the "privative clause" provisions in s 474 of the Act and further explained principles of judicial review, the reasoning applied by his Honour was consistent with that decision. 30 On the hearing of the appeal counsel for the appellant obtained leave, by consent, to raise as the sole ground of the appeal an issue not put to, and, therefore, not dealt with by, his Honour, namely, that the conduct of the review by the Tribunal raised a reasonable apprehension that the review proceeding was affected by bias. The particulars of the amended ground of appeal were as follows: "There was a reasonable apprehension that the RRT had prejudged the credibility of the applicant's claims by reason of the following: (a) The statements in the letters from the RRT to the applicant of 24 August 2001 and 6 September 2001 that the 'information" stated therein "affects" the credibility of the applicant's later claims. (b) Further, but without limitation to the matters referred to at (a) herein, the fact that the RRT failed to listen to the tapes of the applicant's arrival interview despite being expressly requested to do so by the applicant in response to the second of the two letters referred to at (a) herein,…" 31 The relevant principles for determining a claim of apprehended bias have been set out by the High Court in Re: Refugee Review Tribunal Ex parte H (2001) 179 ALR 425 at 434-5 per Gleeson CJ, Gaudron, Gummow JJ at [27] - [31] as follows. "[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. [29] Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. [30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view." 32 Applying those principles to the manner in which the Tribunal proceeded in this matter it cannot be said the Tribunal did other than put before the appellant material that the Tribunal considered could be given some weight in assessing the worth of his claims, giving him the opportunity to make submissions thereon. 33 Section 424A of the Act requires the Tribunal to identify, and bring to the notice of an applicant, material that "the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and…ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review". 34 In stating in each communication to the appellant that the material identified "affect(ed)" the credibility of the appellant's claims and in calling for a response from the appellant to that assertion, the Tribunal acted as it understood it was required to do under the Act and although the letters disclosed that the Tribunal was inclined to give particular weight to that material and foreshadowed a conclusion adverse to the applicant if matters stood as they were, the acts of the Tribunal would not have caused an objective observer to conclude that the Tribunal might have a closed mind nor would it inspire the apprehension that the request for a response was no more than a perfunctory gesture intended to stand as "window-dressing" to disguise an unshakable resolve to reject the appellant's claims whatever response the appellant provided. (See: Johnson v Johnson (2000) 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne JJ at [13]). 35 In respect of the tape recording of the initial interview which the Tribunal declined to hear the appellant did not specify that any part of the written record of interview made by the interviewer would be amplified, explained or contradicted by material in that recording. In those circumstances the Tribunal was entitled to conclude that there would be no utility in spending time upon the exercise as requested by the appellant. No appearance of bias could be said to have been revealed to a fair-minded observer by that conclusion of the Tribunal. Furthermore, the Tribunal was entitled to conclude that if it heard the recording it would be unable to form any view on whether the appellant, speaking in a foreign language, displayed "fear in (his) voice". 36 It follows that the appeal must be dismissed. However, some comment may be made about the review proceeding conducted by the Tribunal insofar as it purported to ground its adverse finding on the appellant's credibility on his demeanour in the "review hearing". 37 As set out above the reasons provided by the Tribunal for its conclusion included the following: "Having observed the [appellant], I am of the view that his manner of giving evidence was particularly evasive. I am of the view that the [appellant] tried to avoid answering questions that he did not wish to answer. He also appeared reluctant to give specific details about his claims. I do not consider the [appellant's] evidence to be credible or reliable." 38 As stated in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [17]-[18] the Tribunal should exercise great care before proceeding to make purported findings on credibility based on an applicant's demeanour: "Reliance upon demeanour as a determinant of credibility requires the exercise of great care, even by the most experienced arbiters of fact, and it may be unsafe to do so where the witness provides evidence in a foreign language and the tribunal receives only the interpreter's understanding of the witness's account. (See: SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 185 per North, Goldberg, Hely JJ at [21]-[31].) That impediment is compounded where the witness is not before the tribunal in person and is able to be observed by the tribunal only as a part-image on a video-screen through a transmission that is not instantaneous and may suggest hesitation on the part of the witness. It becomes an unreliable guide if demeanour alone is relied upon to ground an adverse finding on the credit of the witness. If demeanour is relied upon by a tribunal as the reason for discarding an applicant's claims and the tribunal fails to identify how the demeanour of the applicant caused the tribunal to conclude that part, or all, of the evidence of the applicant should be discarded, that course may, in some cases, lead to an argument that the tribunal carried out its decision-making function arbitrarily or capriciously. (See: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 per Einfeld J at 380.)" 39 Indeed it is to be noted that on the hearing before his Honour some of the problems adverted to in WAEJ were manifested. His Honour stated that the video-transmission between the Court and the appellant in Broome was poor and that the interpreter in Sydney (presumably connected by telephone only) had difficulty in translating the appellant's submissions, particularly as the appellant spoke quickly when agitated. 40 It is to be kept in mind that in cases such as the instant matter if the Tribunal's conclusion proves to be wrong the consequences will be serious and there will be no opportunity to rectify the error. (See: R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514 per Lord Bridge at 531.) 41 The appeal must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.