AB, Ex parte - Re Min for Immig
[2000] HCATrans 366
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S136 of 2000
In the matter of –
An application for Writs of Mandamus, Prohibition, Certiorari and an Injunction against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
CHIEF EXECUTIVE OFFICER AUSTRALIAN CUSTOMS SERVICE
Second Respondent
DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE
Third Respondent
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Fourth Respondent
D. KELLEGHAN sitting as the Member of the Refugee Review Tribunal
Fifth Respondent
DR PETER NYGH in his capacity as Principal Member of the Refugee Review Tribunal
Sixth Respondent
Ex parte –
AB
Applicant
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 21 AUGUST 2000, AT 9.37 AM
Copyright in the High Court of Australia
__________________
MR R.W. KILLALEA: If the Court pleases, I appear for the applicant. (instructed by Susan N. Goodsell)
MR J.D. SMITH: If the Court pleases, I appear for the first, fifth and sixth respondents. (instructed by the Australian Government Solicitor)
HIS HONOUR: I think in this matter there is an application that there be an anonymity order. I notice that that was done in SZ, but it was not done in the Federal Court, as I read the transcript of the decision of Justice Madgwick. Is there much point in having an anonymity order?
MR KILLALEA: It was not sought. It was overlooked in a simple sense before his Honour Justice Madgwick, but given the adverse consequences which may flow for the applicant, the less publicity the matter has the better, your Honour.
HIS HONOUR: Yes, well it does go on the Internet so it may be a reason for providing an anonymity order. You appear, do you, for some of the respondents, Mr Smith?
MR SMITH: Yes, with your leave, your Honour, for the first, fifth and sixth. I understand that the prosecutor is not seeking to proceed against the second, third and fourth.
HIS HONOUR: I am sorry: what is your understanding?
MR SMITH: That the prosecutor seeks only a writ against the first, fifth and sixth respondents.
HIS HONOUR: Right. Just let me get the papers. I have a note here, but not a certificate, that there is to be no appearance for the second, third and fourth respondents. Have they been served, Mr Killalea?
MR KILLALEA: No, they have not been served. Properly, the prosecutor no longer seeks orders against those parties.
HIS HONOUR: Very well. Am I asked to strike them from the proceedings, remove them from the application for the orders nisi? Is that what you ask?
MR KILLALEA: Yes.
HIS HONOUR: Very well, I delete the second, third and fourth respondents. That is to say, the Chief Executive Officer, Australian Customs Service; the Director, Australian Protective Service and the Commissioner of the Australian Federal Police from the record.
Yes, you have leave to appear for the first, fifth and sixth respondents, Mr Smith. What is your attitude, Mr Smith, to the application that the applicant be named AB?
MR SMITH: There is no objection to that.
HIS HONOUR: Very well, the applicant will be named AB and there will be no other reference to his name or identity. Yes, Mr Killalea.
MR KILLALEA: Your Honour, the prosecutor is a medical doctor, he is an Iraqi and he seeks refuge in Australia pursuant to the Convention relating to this status of refugees. He has been refused an application for a protection visa by a delegate of the Minister and, on review by the Refugee Review Tribunal, that decision has been affirmed. It is a decision of the Refugee Review Tribunal of 3 April 2000.
HIS HONOUR: Yes.
MR KILLALEA: In relation to this matter I rely upon the affidavit of Kara Goodsell, affirmed on 15 June 2000.
HIS HONOUR: Is there any objection to the reading of the affidavit or to any of its content?
MR SMITH: No, your Honour.
HIS HONOUR: I read the affidavit of Kara Goodsell, solicitor, affirmed on 15 June 2000. Is there any other evidentiary material?
MR KILLALEA: Yes, I seek leave to file an affidavit, your Honour. This is simply ‑ ‑ ‑
HIS HONOUR: Please identify the affidavit.
MR KILLALEA: It is the affidavit of AB, the prosecutor in this matter, affirmed on 20 August 2000.
HIS HONOUR: Yes. I will take a moment to read that affidavit. Is this in any way in substance different from the record of the events that appear in the reasons for judgment of Justice Madgwick?
MR KILLALEA: No, your Honour.
HIS HONOUR: Yes, I did not think so, but I just wanted to be sure if there was any difference.
MR KILLALEA: It is, in fact, the same affidavit in its words as was before his Honour Justice Madgwick, and I have simply taken the precaution ‑ ‑ ‑
HIS HONOUR: Thank you very much. Is there any objection to the affidavit? Have you had a chance to read it, Mr Smith?
MR SMITH: Yes I have your Honour, and there is no objection.
HIS HONOUR: Do you wish to cross-examine AB?
MR SMITH: No.
HIS HONOUR: Very well. I read the affidavit of AB, affirmed 20 August 2000, read without objection.
MR KILLALEA: I pass your Honour the prosecutor’s submissions in this matter.
HIS HONOUR: I think technically your client, AB, is the applicant at this stage. He becomes the prosecutor if he gets an order nisi.
MR KILLALEA: Thank you.
HIS HONOUR: I will take a moment to read these submissions. Webb was the case where the juror gave the bunch of flowers, is that correct? Webb v The Queen, the juror gave a bunch of flowers to the parents of the deceased, I think.
MR KILLALEA: I think it was the deceased’s fiance who was the person involved.
HIS HONOUR: Yes, I have read those submissions.
MR KILLALEA: There is just one correction I see there, if I might, your Honour, and that is at paragraph 21 on the last line where it refers to “DIMA”, it should be “the IISF”. That is the Iraqi secret police.
HIS HONOUR: I am sorry?
MR KILLALEA: Paragraph 21.
HIS HONOUR: Yes, that should refer to the foreign security service, IISF.
MR KILLALEA: Yes.
HIS HONOUR: Yes, I have read that. What is the point of that last section “Remitter to Federal Court”? If a matter is remitted to the Federal Court, is not the Federal Court then limited in the matters it can investigate by the terms of the Act?
MR KILLALEA: As I read section 485(3), your Honour, once jurisdiction is conferred by section 44 of the Judiciary Act 1903, then the limitation on what the Federal Court can do is not a limitation on its jurisdiction, but rather a limitation on its power. So, once the jurisdiction is conferred in respect of, if it were to be conferred in respect of this matter, I submit that subsection (3) simply says that in respect of that conferred jurisdiction, the only power the Federal Court has is the power it would have as if the matter conferred had been an application for review under section 476.
HIS HONOUR: Yes. Has that not been decided in the Federal Court?
MR KILLALEA: So far as I know, not, your Honour. It was an issue in Minister v A which turned upon that part of section 485(3) which was concerned with a judicially reviewable decision. But there is no contention in this case that what is before this Court, or what would be before the Federal Court would be a judicially reviewable decision because it is a decision of the Refugee Review Tribunal. The only issue then is, can this Court confer jurisdiction via section 44, which the Federal Court would not otherwise have under Part 8 of the Migration Act.
HIS HONOUR: Well, it is not this Court conferring jurisdiction; it is a question whether the Parliament has conferred jurisdiction by permitting the Federal Court to enjoy on remitter the powers of this Court.
MR KILLALEA: Yes.
HIS HONOUR: Yes, well, what do you say: you move on three grounds in your draft order nisi ‑ ‑ ‑
MR KILLALEA: Yes. The grounds identified at paragraph 17, your Honour.
HIS HONOUR: There is an affidavit which is in the file of Elizabeth Norah Jacqueline Warner. Is that affidavit before me? It seems to be just the transcript of the proceedings before the Tribunal.
MR KILLALEA: Yes, I have no objection to that affidavit, your Honour.
HIS HONOUR: You tender and read that affidavit?
MR SMITH: I do, your Honour.
HIS HONOUR: Very well. I will take, a little out of order, the affidavit of Elizabeth Norah Jacqueline Warner, which is affirmed 16 August 2000, which attaches the transcript of the hearing before the Tribunal. Do you have any other evidentiary material, Mr Smith, or not?
MR SMITH: No, your Honour, but I do have an outline of written submissions, if that would assist you.
HIS HONOUR: Yes. Thank you. Do you have a copy, Mr Killalea?
MR KILLALEA: I do, thank you.
HIS HONOUR: I will just take a moment to read these. The transcript discloses that the Tribunal member is “Ms Callaghan”; the application describes her as “D. Kelleghan”. Is it the same person? What is the correct spelling?
MR KILLALEA: Yes.
HIS HONOUR: What is the correct spelling?
MR KILLALEA: The correct spelling is Kelleghan.
HIS HONOUR: Do you agree with that, Mr Smith?
MR SMITH: Yes, I do.
HIS HONOUR: Can I just ask you, Mr Smith: are the members of the Tribunal officers of the Department of Immigration and Multicultural Affairs?
MR SMITH: No.
HIS HONOUR: They are not? You will have to answer, or it will not be recorded.
MR SMITH: They are not.
HIS HONOUR: So the statement by the Tribunal member to the effect that they are within the Department – is the Minister the Minister responsible for the Tribunal?
MR SMITH: As I understand it, yes, that is correct.
HIS HONOUR: Yes, very well. The Tribunal members are officers of the Commonwealth with an independent statutory office. They are not officers of the Department administered by the Minister.
MR SMITH: No.
HIS HONOUR: So the answer to the first question is “yes”, and the answer to the second questions is “no”. They are officers of the Tribunal who are appointed to an independent statutory office established by the Parliament.
MR SMITH: Yes.
HIS HONOUR: But they are not members of the Department.
MR SMITH: No.
HIS HONOUR: Yes, very well. What do you say? The submission is that this is not reasonably arguable. That seems to be the test for giving an order nisi. Do you agree with that test?
MR KILLALEA: Yes, I do, your Honour. Not to take you through the submission in every detail, but the situation is this, that AB came before the Refugee Review Tribunal, and as the transcript shows – does your Honour have that, the transcript attached to the affidavit of Elizabeth Warner?
HIS HONOUR: Yes.
MR KILLALEA: The Tribunal chose to proceed in the absence of AB’s adviser being present. The critical passage at page 1 of the transcript, being where the member says ‑ ‑ ‑
HIS HONOUR: What page?
MR KILLALEA: Page 1 of the transcript, at the bottom of the page.
HIS HONOUR:
although we come within the Department of Immigration we are independent of it -
Yes.
MR KILLALEA: In the first instance, if I can take your Honour to the second last passage of Ms Kelleghan on that page, where she says:
I’ve decided to start without your adviser ‑ ‑ ‑
HIS HONOUR: Well, if you had not been here at 9.30, I would have started.
MR KILLALEA: Yes.
HIS HONOUR: Courts cannot just wait around forever for people to deign to turn up.
MR KILLALEA: Yes, I am not sure that ‑ ‑ ‑
HIS HONOUR: Tribunals cannot either.
MR KILLALEA: Quite. But I am not sure that – you see, what Ms Kelleghan indicates there, as I infer, is that the proceeding was to start at 10 o’clock, because Ms Kelleghan says:
I’ve decided to start without your adviser, at least we’ll see how things go. She should be here, unless she is running late -
so at that stage she was not late –
in the next 10 minutes –
well, that takes us up to the not unusual starting time for the Tribunal of 10 o’clock. The adviser does turn up shortly thereafter, and that is about half-way down page 2.
HIS HONOUR: Yes. Well, you are not complaining that she started a little early.
MR KILLALEA: Oh, no, but critically, it is during that period when the adviser is not there that the Tribunal member had said to AB those important things which are said in the last paragraph at page 1. That is ‑ ‑ ‑
HIS HONOUR: Well, you say they are important. She does say:
we come within the Department of Immigration –
I do not quite know what that means, but she then goes on to say:
we are independent of it insofar as we can change a decision of theirs.
Now, both of those statements are correct, are they not? Independent, and they can change the decision.
MR KILLALEA: That is correct.
HIS HONOUR: The Tribunal is not now advisory, I think it actually makes the decision which the delegate, the Minister, ought to have made. Is that correct?
MR KILLALEA: Yes.
HIS HONOUR: So both of those statements are correct.
MR KILLALEA: Yes.
HIS HONOUR: The Department’s decision is not binding on the Tribunal, that is correct.
MR KILLALEA: Yes.
HIS HONOUR: Then the interpreter:
When you say the decision of the Department of Immigration is not binding, do you mean to this Tribunal?
MS KELLEGHAN: That’s right
THE INTERPRETER: I just want to clarify a point. When you say it’s not binding, the decision of the Immigration is not binding to you or your decision is not binding to the Department of Immigration?
MS KELLEGHAN: I’ll rephrase that then. Even if the Department rejected your application which it did, it doesn’t mean that I have to reject your application also. I can make my own mind up.
That is all correct.
MR KILLALEA: Yes.
HIS HONOUR: So, really, the only phrase that is objected to is the statement:
although we come within the Department of Immigration.
Is that correct?
MR KILLALEA: Yes.
This Tribunal comes within the Department of Immigration -
and the acknowledgment that:
It was an official of the Department of Immigration who rejected your application in the first place.
HIS HONOUR: Yes.
MR KILLALEA: I make the point that the adviser was not there to answer anything that my friend might say about the opportunity to bring ‑ to ask the member to recuse herself. I am mindful of the dicta of the High Court in Vakauta v Kelly (1989) 167 CLR 568. The Court there did indicate that if there was an apprehension of bias, then that could be waived unless the party asked the member at the relevant time, or at that time, to recuse ‑ ‑ ‑
HIS HONOUR: Yes. I did not see that in your written submissions.
MR KILLALEA: No, I did not include it in the submissions, but I just simply ‑ ‑ ‑
HIS HONOUR: I am saying I did not see it in the respondent’s written submissions, either, that they are taking any point that you have waived your rights because you did not ask that the member be disqualified.
MR KILLALEA: I was just minded to bring that to your attention, your Honour, in particular. So the one ground is that the Tribunal indicated to AB that the Tribunal operated within the Department of Immigration. Now the test, and I have referred your Honour to it, at paragraph 18 of the applicant’s submissions, taking their dicta from Webb and Hay v The Queen (1990) 181 CLR 41.
HIS HONOUR: Yes. It would be the case, would it not, that there would be a Minister who was responsible for the Tribunal?
MR KILLALEA: Yes.
HIS HONOUR: The Attorney-General is responsible to the Parliament for this Court and would normally answer questions in the Parliament concerning this Court. So I assume that the Minister for Immigration and Multicultural Affairs is the Minister administering the Act, the Migration Act, under which the Tribunal is established, and in that sense would be the Minister responsible to the Parliament for questions that may arise from time to time concerning the independent operation of the Tribunal.
MR KILLALEA: Yes, I would think that would be the case.
HIS HONOUR: I am just wondering whether that is what Tribunal member Ms Kelleghan meant when she said it is within the Department - the Tribunal comes within the Department of Immigration – because it has to be reconciled with her statement:
The Department’s decision is not binding on the Tribunal –
and that the Tribunal:
is independent of it insofar as we can change a decision of theirs.
“We”, “theirs”, so it has to be read in context.
MR KILLALEA: Yes, I agree with that, your Honour, but the particular reference I take you to at paragraph 18 in the submission from Webb v The Queen, in the third paragraph there, that:
The gesture of the juror may have been spontaneous, but a fair‑minded person might fairly apprehend –
I will just take you to the first reference:
When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether a fair‑minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.
HIS HONOUR: But I think, if I am not mistaken, I remember Webb was a case where the majority, which included Chief Justice Mason and Justice McHugh, held that the firm direction given by the judge to the jury cured the difficulty presented by the action of the juror. Justice Brennan and Justice Deane, as I remember it, dissented, but the majority held that it was corrected by what subsequently took place.
MR KILLALEA: Yes.
HIS HONOUR: We have to consider these principles in the practical world, that we all make slips. I certainly make slips of the tongue; according to my colleagues, I make considered slips sometimes, but the fact is that the statement which was made was followed immediately by the statement “we are independent”, “we can change their decisions”.
MR KILLALEA: Yes, and there is a balance to be struck. The question is what might a fair-minded person, how might they feel sitting back and looking at what is going on. What they have before them is an applicant who faces, in a simple sense, execution if he returns to Iraq. What he says he did in Iraq is that he provided medical assistance to the Sheite guerillas who were operating against Saddam Hussein. The consequences for him are highly adverse, and what the fair-minded observer sees is that, on review of the decision that he does not satisfy the criteria of being a refugee, he comes before an independent tribunal which says, in effect, “We are independent in the sense we can make a different decision to the Department, but we are part of the Department”, and that is manifestly wrong. It cannot give comfort to someone watching on, where such a serious issue is at stake, that the review process, which is the ultimate forum for merits review, is adjudicated by a person who believes that they are part of the Department. It is in that context that, when Ms Kelleghan says at the bottom of page 1:
we are independent of them insofar as we can change a decision of theirs –
the fair-minded person might think that what the Tribunal member is saying is the starting point is the decision of the Department. The starting point is the decision that this man is not a refugee. Then Ms Kelleghan’s approach is to see whether or not she will change that decision. Whereas, if she took the attitude properly that she was providing independent merits review, then the starting point is a consideration of the application and the material put forward in support of AB’s application for refugee status. So, allying herself with the Department as she did, and saying “we can change a decision of theirs”, the fair-minded person might reasonably take the view that the starting point is the decision which has already been made against the applicant.
That is the first ground, your Honour, which I have set out in the applicant’s submissions at paragraph 17(i). The second ground is the member’s gesture of finger pointing and a statement with a threatening tone, and that is covered in detail at paragraph 21. That is to be seen in the context of the Member reacting to a comment by AB in which AB drew a comparison between his lack of knowledge of personnel numbers in DIMA – the Department of Immigration, his lack of knowledge of personnel numbers in the Iraqi secret service. Now, it was quite a reasonable comparison for him to draw. Such a comparison had been drawn at an earlier stage in the proceedings where ‑ ‑ ‑
HIS HONOUR: We are referring to the transcript, are we?
MR KILLALEA: Yes, we will just go to the transcript, and AB had asked the member what did she mean by “plotting”, and he said, “Can you explain to me by reference to some world event?”. She said, and this is in the affidavit of Kara Goodsell – the easiest place for me to find it – the affidavit of Kara Goodsell at paragraph 17 – I was just wondering if I might find it in the transcript, your Honour – it is a better reference. Page 19, my friend has assisted me there. At the bottom of page 18 of the transcript, your Honour.
HIS HONOUR: Eighteen, yes.
MR KILLALEA: The last paragraph, the interpreter, “What do you mean by plotting?” and the interpreter speaking for AB, of course, “If you mean by plotting”, et cetera:
If you can elaborate more on the word, plotting and telling me, what do you mean by plotting, for example by comparison to a world experience or a world event, what is exactly meant by the word, plotting?
This is an intelligent man. He simply wants to answer the question and he needs some assistance, the meaning of the word “plotting”. Ms Kelleghan, at the top of page 19, said:
All right, I will give you an example from the place you were in, all right? The Sheite gorillas –
and so on.
HIS HONOUR: Yes, well, he answered that pretty well. He says, became “convinced”:
changing their government, not in a military sense or in a violent sense but in their change of government –
So, his answer was responsive to the questions.
MR KILLALEA: Yes, indeed, and that is part of the point I make, that he was responsive at all times to the questions asked by the member. But, then, if I take your Honour to the affidavit of AB, sworn on 20 August 2000 ‑ ‑ ‑
HIS HONOUR: This is his affidavit or ‑ ‑ ‑
MR KILLALEA: Yes, the affidavit of AB.
HIS HONOUR: Yes, which paragraph?
MR KILLALEA: Paragraph 6 – or perhaps paragraph 5 is the introduction, your Honour, and the conversation at paragraph 6 is the important one. So, the essence of that is that Member Kelleghan wants to know of AB how could he explain why the Intelligence Service forces “didn’t send few vehicles to arrest you at the other hospital as well?”, and he says, “I haven’t worked with – within – the IISF to know”. The member asked for further explanation, and he says:
I don’t know exactly or roughly how many are working, let’s say, in DIMA, because I’ve never worked within DIMA before. Likewise, I can’t tell you about the IISF.
There is nothing provocative in that. He draws for the member a simple comparison in the same way that the member had drawn for him the simple comparison in his place, and that was the reference at pages 18 and 19 of the transcript. So, there is nothing untoward in his approach. It is an intelligent approach. It is a reasonable approach. But the member’s response is the concerning part of the whole of this and at paragraph 7:
Member Kelleghan responded…..abruptly and with a threatening tone of voice.
Paragraph 8:
pointed at me with a finger of her right hand…..and said to me
“Don’t be smart and try, ever, to compare the IISF with DIMA.”
Paragraph 9, he “was really freaked out and confused”. That is some measure of the strength of the member’s comment and gesture.
HIS HONOUR: It is not uncommon in human affairs that people misunderstand each other. It happens all the time in this Court between the Bench and the Bar. I mean, he was responding intelligently, in a way that he thought she would understand. She took that as drawing an analogy between the Department of Immigration and Multicultural Affairs and this security force. It is just a difference of understanding, that is all.
MR KILLALEA: Well, there may well be that difference of understanding, there may be, but what does a fair‑minded observer think? What a fair‑minded observer sees, from the outset, someone who identifies themselves with the Department of Immigration and then, in an otherwise quiet exchange of question and answer throughout the course of the hearing, at the one point where AB, within the same conversation, refers to both DIMA and the IISF, the member reacts angrily. It is clear that the member is sensitive and protective about the Department and the fair‑minded observer must conclude, with respect, your Honour, that ‑ ‑ ‑
HIS HONOUR: But courts and tribunals, of which fair‑minded observers are observers, are human institutions. We all know people who are sometimes bad tempered. In my life, in the law, I have known plenty of judges who have been extremely bad tempered. That is a reason why I am so sweet tempered myself. But all that appears to have happened was that there was a misunderstanding. These things happen in human institutions. It is hardly a reason for saying a fair‑minded observer would think that the Tribunal was biased. That is a serious suggestion, really, that she came in there biased against him, ignoring her own independent position, her power to substitute her decision for that of the delegate of the Minister and, really, was determined to go through a charade. That is essentially what you have to say she was doing. She was biased against him because she had a momentary misunderstanding and lost her temper.
As I understand, Justice Madgwick’s reasons – they were addressed to a slightly different question – when he looked at the whole of her conduct of the transcript of the hearing, he concluded that, at certain points in the reasoning she was evaluating and, apparently, going through the process of reaching her decision independently on the merits. If, every time a judge blew up, the fair‑minded observer can say, “Well, that is the end of that”, it really would be a very hard standard to impose on human institutions of adjudication.
MR KILLALEA: Quite. But one might be happier or more content that justice has been done when a judge gives vent, as it were, or expresses his feelings about certain things at different times during the course of proceedings and one gets to understand the judge, and one can make an evaluation as to whether or not the judge is exhibiting bias or actually biased, on account of whatever it is that the judge says. But, in this case, the worrying aspect for the fair‑minded observer, and I make no charge against the member, but the worrying aspect for the fair‑minded observer is that here is a Tribunal member identifying with a Department, conducting an interview which has severe ramifications for the applicant, and particularly severe in this case because of what it is the applicant says he was doing in Iraq; the discourse is placid; the discourse is conducted intelligently on both parts, the question and the response; there is no point of conflict within the discourse, on the transcript.
It proceeds amicably, questions are asked and questions are answered. Issues are explored. There is no sense, as one reads the transcript, that there is any point at which the member could be satisfied that AB was not telling the truth. There is no indication of him, as it were, slipping up. He has no difficulty in responding to the questions and yet, in an unrecorded part of the hearing, there is a major glitch.
HIS HONOUR: Well, major – if you think that is major, by comparison with the rudeness, ill temper, anger, that I have seen over the years in courts, this is minor. This really minor. I mean, I think we have to keep our sense of proportion here.
MR KILLALEA: The difficulty, your Honour, is that ‑ ‑ ‑
HIS HONOUR: Your best point is that it has to be understood in the context of the statement earlier about being within the Department and that it might, for that reason, even if, on its own, it would be seen as a storm that passed, that it might be seen as reinforcing an apprehension of bias because of the earlier statement that the Tribunal was within the Department.
MR KILLALEA: Yes, I accord with your Honour. That is the stronger ground and I press that. It is set out at paragraph 17 at the third point. I do make the point that the greater apprehension of bias may be where there is only one glitch in an otherwise placid discourse. That the judge who, as it were, exhibits bad temper throughout the course of a trial – one knows the judge. The problem here is that one does not know the member. The member, in her decision, has reasoned the decision in accordance with section 430; she has ticked the boxes, as it were; she has found against the applicant on all major issues. It looks a reasonable decision and yet there, in the middle of the hearing, there is, for the applicant, a major glitch.
The test, your Honour, I submit, is not so much – the test must be of reasonable apprehension of bias, must be from the perspective of the fair‑minded observer. I submit that, at the end of the day, that gesture, the threatening tone, and the protective attitude of DIMA which is exhibited in all of that, allied with the member’s statement that the Tribunal is part of the Department would lead to an apprehension of bias in the eyes of a fair‑minded observer. That is my submission, your Honour.
HIS HONOUR: Yes, thank you. There was a third ground. What was the third ground?
MR KILLALEA: No, the third ground is that. It is the statement, the gesture.
HIS HONOUR: So, it is the statement, the gesture ‑ ‑ ‑
MR KILLALEA: Against the ‑ ‑ ‑
HIS HONOUR: So, it is the statement, the gesture ‑ ‑ ‑
MR KILLALEA: Yes, the member’s statement that the RRT is part of the Department and the member’s gesture.
HIS HONOUR: So, is there anything different in 3, from 1 and 2, except that it puts them in combination.
MR KILLALEA: In combination.
HIS HONOUR: I follow. Very well, thank you for the helpful submission.
MR KILLALEA: Sorry, your Honour ‑ ‑ ‑
HIS HONOUR: In our growing immigration practice in the High Court of Australia, it would be helpful to have these sent to us or faxed to us, to the Registry, the weekend before or the day before so that we can read them before we come in ‑ ‑ ‑
MR KILLALEA: I do apologise, your Honour, I have had a malingering illness and I ‑ ‑ ‑
HIS HONOUR: No, I realise you work under pressure too, but it would help us.
MR KILLALEA: Yes, I apologise for that. I was aware of that but I have had an illness and got behind in several matters.
HIS HONOUR: Yes, well, I speak only for myself, but judges normally do read papers.
MR KILLALEA: Yes.
HIS HONOUR: Thank you, very much.
MR KILLALEA: Can I pass your Honour a copy of the Hansard? It has been referred to in the submissions ‑ ‑ ‑
HIS HONOUR: Yes, I think I saw that. Did Justice Madgwick refer to it? This is about the independence of the Tribunal, is it?
MR KILLALEA: Yes. Just the record from which the references are drawn in this submission.
HIS HONOUR: And it has not changed since November 1992, relevantly?
MR KILLALEA: Not that I know of.
HIS HONOUR: What do you draw my attention to here? This is 2622.
MR KILLALEA: It is drawn out in the submissions at paragraph 5 of the applicant’s submissions. There are various references there to the fact that the RRT is meant to provide independent merits review.
HIS HONOUR: Yes, well, I see that.
MR KILLALEA: The importance of that is that, one, the member did not see herself as being independent, and that second point I took you to, that
the fair‑minded observer might surmise from what is recorded at page 1 of the transcript, that she began from the point that the Department had already made a decision against the applicant and the question for her was whether or not she would change that rather than, on the perspective of an independent merits review forum, that she would look at the whole matter afresh.
HIS HONOUR: Yes, well, I understand those submissions. Yes, Mr Smith.
MR SMITH: Your Honour, might I make one preparatory remark, and that is in respect of the incident which is deposed to by AB.
HIS HONOUR: I cannot hear, I am sorry.
MR SMITH: I beg your pardon, your Honour?
HIS HONOUR: I cannot hear you. You cannot hear me, I cannot hear you, so we both must speak up.
MR SMITH: I just wish to make one preparatory remark about the incident involving the member and AB which is deposed to in his affidavit, namely that there is some dispute about the exact ‑ ‑ ‑
HIS HONOUR: Yes, I realise that. Justice Madgwick refers to that, but for the purposes of today, I am taking it that I am expected to proceed on the basis that the only evidence before me is that of the applicant. You had an opportunity to request his cross-examination. You did not do so. You had an opportunity to present other testimony and you did not do so. So, on the face of things, I would act on what the applicant says.
MR SMITH: Yes, your Honour.
HIS HONOUR: There was some mention somewhere in, I think it is the solicitor’s affidavit, Ms Goodsell, that she had listened to the cassette and that – this is at page 2 of her affidavit – does the listening to the cassette disclose the tone and circumstances of the actual conversation or is it, as Justice Madgwick said, that the recorder was turned off at the relevant time, or did not record what was said?
MR SMITH: What was said was not recorded, your Honour.
HIS HONOUR: That is common ground between both sides, is it?
MR SMITH: Yes.
HIS HONOUR: Yes, very well.
MR SMITH: Your Honour, the first point then is the question of the involvement of the Tribunal, or the relationship of the Tribunal to the Department of Immigration and Multicultural Affairs.
HIS HONOUR: Yes. What did the Tribunal member mean by that statement, within the Department?
MR SMITH: It is my submission, your Honour, that the member meant no more than what your Honour said in respect of the relationship between courts and the Attorney-General’s Department. In this case, the Tribunal is constituted by the Migration Act.
HIS HONOUR: But what does it mean, “come within the Department of Immigration”, is that a correct statement, or not?
MR SMITH: Well, it could be, in the sense that the Tribunal is constituted by the Migration Act. The Migration Act comes within the portfolio of the Minister, the first respondent, and the first respondent’s Department is the Department of Immigration and Multicultural Affairs. So, viewed in that context, it is accurate. However, that is only part of what the member said at the time. As your Honour correctly pointed out, the member went on to say that they are independent of the Department – “insofar as”, and this is at the bottom of page 1 of the transcript:
we can change a decision of theirs. The Department’s decision is not binding on the Tribunal.
That statement obviously raised a question in the applicant’s mind and that question was clarified by the member saying:
I’ll rephrase that then. Even if the Department rejected your application which it did, it doesn’t mean that I have to reject your application also. I can make my own mind up.
The applicant says that he understands that.
HIS HONOUR: Yes.
MR SMITH: That, in my submission, is the end of that matter. Not only is what the Tribunal member said correct, but at the end of the context of the passage, there is no confusion left in the applicant’s mind. What is more, because of both those matters, no fair‑minded person could reasonably apprehend any bias, or any pre-judgment, because of that matter. Because of that result, then, your Honour, the combination of that, together with the later incident, if I may call it that, really gives no greater strength to that incident.
HIS HONOUR: Well, the suggestion is that because of the earlier statement, that that lends colour to how the reasonable observer would interpret what is argued to be a highly defensive statement, that is to say, a statement by the member of the independent Tribunal highly defensive of the Department. Why should she be defending the Department? Why should she be reacting in such a strong way? That is the proposition.
MR SMITH: That is the proposition, your Honour. But in the context also of the explanation ‑ ‑ ‑
HIS HONOUR: I mean, if people criticise the Attorney-General’s Department, I would not get excited, not at all.
MR SMITH: Some of us may.
HIS HONOUR: Why would she get so excited, as it is put? I mean, somebody draws, for a particular purpose, an analogy between the Department of Immigration and Multicultural Affairs and a security service in his country.
MR SMITH: The reasonable explanation which arises immediately, to my mind, at least, is that it is the strength of the feeling about the Iraqi security forces rather than about the Department. That ought not to be put too lowly, in the context of the specialisation which the Tribunal has and the information to which it has access in respect of those forces, and to what those forces do. It may be not just a comparison to the Department but to any Australian institution which may give rise to a similar emotional outburst.
But further than that, your Honour, the context of the outburst must be seen as well. It is a single storm, if you may have it that way, which then appears to be immediately calmed. Certainly, there is nothing in the affidavits relied on by the applicant which says that there was only on-going effect from that and the applicant appears to accept that the rest of the hearing was conducted with a great deal of equanimity. So that, even if there were a question which arose at the time, that, similar to the case of Webb, was overcome by what transpired: namely, there was an apology, or an explanation by the interpreter, that there was an insult made; there was an apology; and both the Tribunal member and the applicant moved on with the hearing, and the adviser, of course, moved on with the hearing.
I have referred in my submissions, your Honour, to various matters in the balance of the hearing which tends to support the view that the
Tribunal member had not prejudged, even at that stage, after the outburst, the matter, in any way. Those passages are at, particularly, page 29, where the member, in discussion with the adviser, is discussing the question of the return to Iraq, and says, in the middle of that paragraph:
I have to make up my mind about whether I do think he has that profile or not -
and refers to various advices by the Department of Foreign Affairs and Trade and from ASIO. At page 32, the adviser raises the question, or asked the question, of whether there is any aspect in relation to credibility which the Tribunal has difficulties with. In other words, the adviser puts it more colloquially, by saying “that you think are a little bid dodgy”, and the member frankly puts those issues; states that she did have questions about:
how he got into his involvement with that group after a short lifetime of not being the kind of person who does get involved in these things -
namely, Sheite guerilla movements. I see that “guerilla” is misspelt in the transcript. The last sentence of that paragraph:
I mean he’s given me an answer and I still have a question about it. These issues might resolve themselves in a – I am bring quite frank with you.
So, the only conclusion that may be drawn from that is that, even if there were some question hanging over the Tribunal member at the stage of the outburst, that has resolved itself. Although I have not raised waiver at all in the submissions, it looks as though the adviser, and the applicant at that stage, are not concerned of any potential bias in the member during the hearing. That concern, in my submission, your Honour, is a reasonable one. So that, on the points raised by my friend today in support of the application, it is not reasonably arguable that all of the circumstances would give rise to a reasonable apprehension that the Tribunal member had prejudged the matter.
HIS HONOUR: Yes, thank you.
MR SMITH: Those are my submissions.
HIS HONOUR: Anything in reply?
MR KILLALEA: Yes, just two short matters, your Honour. One, there is no apology. The affidavit of AB records the conversation and there simply is no apology recorded in that conversation with the member. My friend has ‑ ‑ ‑
HIS HONOUR: That might be because she did think he was drawing an analogy between the security service and the Department of Immigration and Ethnic Affairs.
MR KILLALEA: It may be.
HIS HONOUR: So, she might have thought that an inappropriate analogy to draw. Read in context, I can see what the applicant was trying to do, but it is just one of those misunderstandings. They happen all the time. Unfortunately, that is human communication. Particularly where there are language problems, it is quite common for there to be misunderstandings.
MR KILLALEA: Yes, there did not seem to be much misunderstanding about what was said and, indeed, from the applicant’s part, he said what he meant to say. He does not resile from that. He said it is simply an innocent remark. But there was no apology from the member. Indeed, one might ‑ ‑ ‑
HIS HONOUR: What he was saying was, “I have never worked in such a big organisation. I have never worked in a big organisation like the Department and I, therefore, do not know”, whereas she thought he was drawing an analogy between the Department and the foreign security service which he thought was an unfair one. That is just two ships passing in the night.
MR KILLALEA: Yes, but if there was anything that could have been added to the conversation which, I submit, would have assisted your Honour, it would have been an apology from the member saying to AB, “I see what you mean. I take no offence at that”, and then the matter could have moved forward.
HIS HONOUR: Yes. Judges are more likely to apologise – we are all more likely to apologise today then we were in my youth when no one apologised. Judges were rude, and that was it. You just had to get used to it.
MR KILLALEA: It is not often that so much is at stake though, your Honour. In this case, quite simply, his life is at stake. He is in a ‑ ‑ ‑
HIS HONOUR: I have to tell you I get an impression that it was a bit of a storm that quickly passed, that is the impression I get from looking at the whole transcript. It does not seem to have loomed very large.
MR KILLALEA: Yes, but what I submit you can also find in the transcript that AB is a very polite man, he is a very reasonable man, and of course he would have been taking care – and that is evident in the conversation he records - that he did not upset the member. He did not want her upset for untoward reason. He has simply chosen to move forward with the interview in a polite and placid manner.
HIS HONOUR: Yes.
MR KILLALEA: Those are my submissions, your Honour.
HIS HONOUR: Very well. I will adjourn for a few minutes and I will give my decision in a short time. I will adjourn now for about 10 minutes.
AT 10.42 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.11 AM:
HIS HONOUR: This is an application by AB, a foreign national, for orders nisi for constitutional writs of prohibition, Mandamus and an injunction, and for the ancillary relief of a writ of certiorari. The respondents named are the Minister for Immigration and Multicultural Affairs (“the Minister”) and members of the Refugee Review Tribunal (“the Tribunal”). Other respondents named in the original process were, by consent, deleted from the record. By leave, the Minister appeared. He resists the grant of the orders nisi.
Pseudonym order
The applicant asked that he be accorded a pseudonym to preserve his anonymity. Given that he did not seek or obtain such relief in the Federal Court of Australia or the Tribunal (where he was named) there seems comparatively little point in the use of a pseudonym in this Court. However, as the order was not opposed, I directed that the proceedings be named AB v the Minister and the applicant identified only as AB. There is no importance to the Australian community in knowing the applicant’s name. Of relevance to the making of this order is the fact that the transcript of argument and reasons of this Court are published on the Internet and therefore available worldwide. They would therefore be available in the applicant’s country of nationality where he is afraid of reprisals.
Basis of the application
The grounds of the relief sought are that the fifth respondent, Member D. Kelleghan of the Tribunal, denied the applicant natural justice, specifically in that a fair‑minded person might reasonably apprehend that she had prejudged the applicant’s claim for refugee status under the Migration Act 1958 (Cth) (“the Act”).
Proceedings in the Federal Court
The applicant first sought relief by way of judicial review in the Federal Court of Australia, having been denied refugee status by the delegate of the Minister and that decision having been confirmed by the Tribunal. Under the Act, the grounds for judicial review in the Federal Court in such matters are limited. The applicant’s application was heard in the Federal Court by Justice Madgwick. On 24 May 2000, his Honour dismissed the application for judicial review. He noted that the applicant had proceeded on a substantive ground of actual bias on the part of Member Kelleghan. By reason of section 476 of the Act, perceived or apprehended bias in the administrative decision maker is excluded. Accordingly, there has, to use Justice Madgwick’s words, been something of a renaissance in the law relating to actual bias. Obviously it is more difficult to prove actual bias than to establish, by reference to objective materials, that a bystander might reasonably apprehend that the administrative decision maker in question might have been biased. Compare The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552-555; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 517-519; Livesey v The New South Wales Bar Association (1931) 151 CLR 288, 293-298 and Webb v The Queen (1994) 184 CLR 41 at 47 and 53. In the Federal Court, the tests to be applied to determine whether actual bias has been established have been stated in a number of decisions: See eg. Sun v Minister for Immigration (1997) 81 FCR 71 at 123 and 135. Justice Madgwick applied those tests. He concluded adversely to the applicant. This proceeding before me is not an appeal from that decision.
Application to the High Court
The applicant now comes to this Court seeking constitutional review and relief ancillary to such review. The order nisi which he seeks would, if granted, be the first step on the way to a hearing by the Court of his claim. The authority of this Court holds that an order nisi should be granted if the applicant makes out a prima facie or arguable case: Re Brennan, Ex parte Muldowney (1993) 67 ALJR 837 at 840. In so far as there is a difference between a prima facie or a reasonably arguable case, I will apply the criterion of a reasonably arguable case. See Re Glennon [2000] HCA 37 at [27]. Relief of this kind should not be grudgingly afforded, having regard to the vital role which section 75(v) of the Constitution plays in upholding the rule of law in Australia.
Before this Court, in respect of the claims for relief under the Constitution, the applicant was not confined to actual bias. He reformulated his argument to rely on perceived or apprehended bias. His entitlement under the Constitution to do so was not contested. He confined his claim to the same factual materials, being the transcript of the proceedings before the Tribunal and an affidavit supplementing that transcript.
In support of his arguments before the Federal Court the applicant had suggested that the existence of actual bias might be established by proof of a loss of temper on the part of the Tribunal member. Before me, a similar argument has been mounted with respect to the ground of the reasonable apprehension of bias. Unfortunately, at the relevant time, the sound recording of the proceedings before the Tribunal was not functioning. Justice Madgwick said that there was nothing sinister about this. So much was not contended before me. The result, however, is that it was necessary for the exchange complained of to be proved by affidavit testimony.
First Ground : suggested loss of temper of Tribunal
The applicant, a medical doctor from a Middle Eastern country belonging to a particular religious sect, has complained that he had a well‑founded fear that if he were returned to that country, he would be persecuted for reasons of his religion and political opinions; cf Migration Act 1958 (Cth) s 4(1) and cf Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 232, 292. He complained of oppression in that country directed at him and members of his family by the country’s intelligence services known as “IISF”.
Read before me today is an affidavit by the applicant in which he described an exchange between himself and Tribunal Member Kelleghan, the applicant contended that, based on the material in the affidavit, a reasonable bystander would infer that the member was biased. The affidavit, with modification by reference the pseudonym order, reads as follows:
Member Kelleghan
“[AB], as long as you were aware of…Intelligence Service forces ‘IISF’ and resources ‘facilities’, how could you explain why they didn’t send few vehicles to arrest you at the other hospital as well?”AB
“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?”AB
“For example, I don’t know exactly or roughly how many are working, let’s say, in DIMA, because I’ve never worked within DIMA before. Likewise, I can’t tell you about the IISF.”DIMA is a reference to the Australian Department of Immigration and Multicultural Affairs which is administered by the Minister. According to the applicant, Member Kelleghan then:
“responded to my answer abruptly and with a threatening tone of voice.
Member Kelleghan pointed at me with a finger of her right hand extended and said to me, ‘Don’t be smart and try, ever, to compare the IISF with DIMA’.
I was really freaked out and confused by the Member’s tone and action.
I turned immediately to the interpreter and asked what have I said and what does her response mean?
The interpreter explained to me that the Member had understood my explanation as an insult. The interpreter said ‘She has been offended by it’.
The interpreter explained that it was for that reason that she (the Member) lost control and replied in such a harsh context.
I said to the interpreter, ‘Would you please explain to the Member that I never meant any insult, and it is our 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.’
The interpreter translated my words to the member.
The hearing continued.”
The applicant complains that the foregoing exchange with the member of the Tribunal gives rise to a reasonable apprehension of bias. In support of this contention, he relies upon what the member said, upon the gesture of pointing her finger at him, upon the threatening tone which he states that the member adopted and upon the context in which the statement was made.
Accepting, as I am prepared for this application to do, that the words said were those deposed to by the applicant, and allowing that the Tribunal member may have misunderstood the point which the applicant was making and may even momentarily have become angry, this would not, in my opinion, give rise to an arguable complaint of reasonably apprehended bias or any other breach of the rules of natural justice or procedural fairness. I do not consider that any additional features of this isolated exchange bolster the argument and make it reasonably available to the applicant. It could not, even arguably, demonstrate that the Tribunal member had prejudged the application before her. I would dismiss the application for orders nisi on that ground.
It is not irrelevant to take into account the fact that, immediately after the exchange complained about, the hearing proceeded in an apparently regular and temperate way. Nor is it irrelevant that neither the applicant nor his adviser during the hearing complained about the member’s statement or asked that she disqualify herself from proceeding to hear and determine the application before her.
Second ground : suggested mistake about Tribunal independence
A second basis of complaint is also relied upon. This refers to a statement which was made at the beginning of the proceedings before the Tribunal. The statement was made at a time before the applicant’s adviser had arrived. At that time the Tribunal member was engaging in conversation with the applicant and proceeding to give him, as she described, general information about the Tribunal and her role in it. The transcript of the proceedings has been placed before me without objection. The relevant passages read, correcting the name of the Tribunal member which is misspelt in the original and observing the pseudonym order:
MEMBER KELLEGHAN: AB, good morning?
AB: Good morning Ma’am.
MEMBER KELLEGHAN: I’ve decided to start without your adviser, at least we’ll see how things go. She should be here, unless he is running late…..I need some time before talking to you about your actual claims to just give you some general information about the way the Tribunal works and so on for which you don’t need any help from your adviser.
INTERPRETER: Clear, thank you.
MEMBER KELLEGHAN: When she arrives she’ll be shown straight in. Please help yourself to water. This Tribunal comes within the Department of Immigration. It was an official of the Department of Immigration who rejected your application in the first place. Then you applied to us and the reason you came to us was because although we come within the Department of Immigration we are independent of it insofar as wee can change a decision of theirs. The Department’s decision is not binding on the Tribunal.
INTERPRETER: When you say the decision of the Department of Immigration is not binding, do you mean to this Tribunal?
MEMBER KELLEGHAN: That’s right.
INTERPRETER: I just want to clarify a point. When you say it’s not binding, the decision of the Immigration is not binding to you or your decision is not binding to the Department of Immigration?
MEMBER KELLEGHAN: I’ll rephrase that then. Even if the Department rejected your application which it did, it doesn’t mean that I have to reject your application also. I can make my own mind up.
INTERPRETER: Now I understand.
Shortly after the foregoing exchange the adviser arrived and the proceedings continued.
The complaint made relates to two statements of Member Kelleghan which are recorded in the above passage. The first was the statement “This Tribunal comes within the Department of Immigration.” The second is the repetition of that statement, “although we come within the Department of Immigration”. It is clear from a reference to the Act that the Tribunal is established by section 457 as an independent body. Its power of independent review of the decisions of the Minister and the Minister’s delegates appear in section 411(1)(c) of the Act. Its function, by the statute, is to:
exercise all the powers and discretions that are conferred…..on the person who made the decision.
So much appears in section 415 of the Act. The complete independence of the Tribunal from the Minister and the Department was accepted by counsel for the Minister. This notwithstanding, there is no material misstatement by the Tribunal delegate, in my opinion, so as to betoken an arguable case that she misunderstood either the Tribunal’s role or her own.
The meaning of the repeated statements made by her that the Tribunal comes “within the Department” of Immigration is not entirely clear. It is possible that she may have been referring to the fact that the Tribunal is established by the Act; that the Minister who administers the Department of Immigration and Multicultural Affairs is the Minister who administers the Act; in this way, the Minister is the Minister responsible to the Parliament in respect of the Tribunal. In that sense the Tribunal has a connection to the Minister and to his Department. However that may be, I do not think it is reasonably arguable that the statements to the effect that the Tribunal is “within the Department” indicate that the Tribunal member misunderstood the independent nature of her functions. She went on to make those functions clear. She affirmed, as clearly as would have been possible in brief remarks, the independent functions of the Tribunal. She answered the questions of the interpreter on behalf of the applicant accurately. Read in their context, I do not consider that a reasonable bystander hearing the exchange could conclude that the member had seriously misunderstood the nature of her independent status and duties.
Third ground : combined perception of both grounds
Finally, it was argued that the foregoing two points were to be seen in combination. The reason for the Tribunal member’s statement defensive of the Department was, according to this submission, reasonably to be seen as based on her misapprehension that the Tribunal was part of the Department. In this way, it was contended, the reasonable bystander, although perhaps willing to excuse the two exchanges read or heard separately, would infer a reasonable apprehension of bias in the sense of prejudgment on the part of the Tribunal member from the combination of the two.
I do not regard that argument as reasonably open in the circumstances. I repeat that the Tribunal member clearly indicated her appreciation of the Tribunal’s independence under the Act. In these circumstances, the argument that she was overly protective of the Department is not reasonably sustainable. The best explanation for her actions and words is that she thought the applicant was drawing an offensive analogy between the attitudes and methods of the Department and the security services of the applicant’s country of origin. Such an analogy would be offensive to many. However, the storm which appears to have originated in a misunderstanding quickly subsided. The hearing then proceeded in a completely orthodox way.
Whilst sustained ill‑temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator. Galea v Galea (1990) 19 NSWLR 263 at 279-280, 283. Clearly, this is what happened here. There were no other reasonably arguable grounds to evidence bias or breach of the rules of natural justice and procedural fairness.
Order
Accordingly, the application is dismissed.
Is there any reason why it should not be dismissed with costs?
MR KILLALEA: Yes. Your Honour, had the matter been properly recorded, I think his Honour Justice Madgwick touches upon this in his judgment, then the applicant would have been in a position to better brief counsel and a better assessment of the exchange and the importance of the exchange would have been able to have been assessed.
HIS HONOUR: His Honour refused to order costs. What was the ground for that?
MR KILLALEA: That was essentially that ground, that the applicant was at a disadvantage for not being able to demonstrate the actual exchange because there was no tape recording of it. In the normal course, there would have been a tape recording.
HIS HONOUR: But that was at a point when the issue was actual bias, which is a very difficult thing to prove. Here, the case was mounted before me on the basis of reasonable apprehension of bias, which depends upon all of the circumstances and the manner and tone is of less significance.
MR KILLALEA: I would say that the tone would be of significance. The anger that came through in the tone, had one been able to hear it on the tape, might well have – the lack of it or the strength of it may well have influenced the course of these proceedings.
HIS HONOUR: Yes. What do you say, Mr Smith?
MR SMITH: The failure to record the evidence, in my submission, would not have had any – or it is not alleged that it would have had any effect on the decision whether to bring these proceedings or not. The proceedings were brought on the evidence as it is and, as your Honour has pointed out, that has not been challenged, although it may reasonably have been. And it is on the basis of that evidence that this decision has been made and the case has been run. That being the case, there is no nexus between the failure to record and what might otherwise have happened. For those reasons, the costs of today ought to be awarded to the respondent.
HIS HONOUR: The application is dismissed with costs. I certify for the appearance of counsel in chambers.
Call the final application.
AT 11.38 AM THE MATTER WAS CONCLUDED
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