Addai v Minister for Immigration and Multicultural Affairs

[1999] FCA 1154

FEDERAL COURT OF AUSTRALIA

Addai v Minister for Immigration & Multicultural Affairs [1999] FCA 1154

MIGRATION – Migration Act 1958 (Cth) – application for review of a decision of the Refugee Review Tribunal

PRACTICE – late application for an adjournment of hearing – attempted revival of ground of review earlier abandoned – allegation of actual bias in decision maker – consideration of factors relevant to grant of an adjournment

Migration Act 1958 (Cth) ss 476(1)(a), (e), (f), (g), 478(1)(b)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505

JOSEPHINE ADDAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1422 of 1998

BRANSON J
SYDNEY
5 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1422 of 1998

BETWEEN:	JOSEPHINE ADDAI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	5 AUGUST 1999
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. The history of this matter is somewhat surprising.

2. By an application dated 23 December 1998, the applicant sought an order of review under Part 8 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal, (“the Tribunal”) of 26 November 1998 which affirmed a decision of a delegate of the respondent that the applicant was not entitled to a protection visa.

3. The application, when filed and served, invoked the grounds specified by s 476(1)(a), (e), (f) and (g) of the Act but contained no particulars of any grounds.

4. On 10 February 1999, the applicant filed written particulars of the grounds of review upon which he relied.  In relation to the s 476(1)(f) ground, namely that the decision of the Tribunal was induced or affected by fraud or by actual bias, the written particulars indicated that the ground would not be relied upon.

5. The bundle of relevant documents prepared for the use of the Court and parties, was for this reason, compiled without including a copy of the transcript of the hearing before the Tribunal.

6. By letter dated 9 July 1999, the parties in this matter were advised by the court that the matter would be heard today and the parties’ attention was drawn to an earlier direction made for the filing and service of written submissions prior to the hearing date.  The applicant filed and served her written submissions late yesterday afternoon.  It was at or about that time that the respondent’s legal representatives first learned that, despite the written particulars filed on 10 February 1999, the applicant did propose to contend before the Court today that the decision of the Tribunal was induced or affected by actual bias.

7. No evidence touching upon the alleged actual bias has sought to be filed and served by the applicant nor has she taken steps to secure the transcript of the hearing before the Tribunal.  I understand that counsel for the applicant, who has been retained for only a short time, accepts that it is not possible for the hearing of this matter to proceed today.  The respondent has plainly not had reasonable time to consider the ground of review now sought to be pressed.  Nor has the Tribunal member against whom the serious allegations of actual bias is made been advised that the applicant proposes to rely on such allegation in support of her application to this Court.  There is a slight possibility that, if informed, the Tribunal member may wish to give evidence before the Court.  However, of greater practical significance, in my view, is the fact that the respondent may wish his legal advisers to interview the Tribunal member before being required to respond to the allegation.

8. I am of the view that the Tribunal member himself is entitled to be informed before the conduct of the hearing in this Court that an application before the Court for review of his decision is to be pressed on the ground that his decision was induced or affected by his actual bias.  A further important consideration is that it is desirable for an allegation of actual bias to be considered in the context of the totality of the hearing before the Tribunal, but, as is, in the circumstances, to be expected, the documents made available to the Court for today’s hearing by the solicitors for the respondent do not include a transcript of the hearing before the Tribunal.

9. The real question before me is thus of whether the applicant should be granted an adjournment to allow the ground of review upon which she now seeks to rely to be entertained by the Court.  For such an adjournment to be of value to the applicant, she would need also to be given (a) leave to withdraw the assertion in her written particulars that this does not rely on the ground of actual bias included in her application and (b) leave to now provide particulars of the allegation of actual bias.

10. I have, after troubled reflection, reached the conclusion that the applicant should not be granted the adjournment which she seeks.  In reaching this conclusion, I have taken into account, in particular, the following matters:

    1.It is now eight months from the date of the decision of the Tribunal and six months since the respondent was advised that no reliance would be placed on the hearing of this application on any allegation of actual bias. It is to be remembered that s 478(1)(b) requires that an applicant must lodge an application for review under s 476 of the Act within 28 days of the making of a decision and that the Court has no power to allow an extension of that time. Although by the present application the applicant does not seek directly to avoid the operation of s 478, it seems to me that s 478 reflects a Parliamentary intention that applications of this kind should be made and, where possible, heard and determined promptly.

    2.The applicant has at all times been legally represented, although not by her present counsel.  No evidence from the applicant’s solicitors touching on the question of how it came about that a ground of review abandoned in February should be sought to be revived in August has been placed before me.  It may be that the decision was in some way influenced by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746 which has rendered unarguable at least one other of the grounds of review advanced by the applicant. However, Eshetu does not seem to provide an explanation for the decision, apparently made by the applicant in consultation with her legal advisers in about February, to abandon reliance on the allegation earlier foreshadowed of actual bias in the Tribunal member.  The High Court decision in Eshetu was delivered on 13 May 1999.

    This is not a case in which an applicant or his or her legal representative made a mistake by overlooking a possible ground of review.  The relevant ground was initially relied upon but subsequently, in effect, abandoned – it is to be assumed after proper consideration.  There is no material before me upon which I can be satisfied that to refuse the adjournment sought by the applicant would be to punish the applicant for either her error or that of her legal representatives.  In my view, if the applicant is prevented from relying on the ground of review provided by s 476(1)(f), she will merely be required to maintain a position earlier adopted by her, apparently on the basis of considered legal advice.

    3.My diary between now and the end of the year is extremely busy.  Although I do not suggest that this matter could not be heard by me this year if the adjournment sought by the applicant is granted, the matter could not be heard by me before late October at the earliest – and even to do that would require me to allocate time to this matter which has deliberately been set aside for another purpose.  To transfer the matter to another judge’s docket at this stage would not only be inconvenient to that judge but it would also be inefficient since I am now familiar with the matter.

    4.Although, as Mr Beech-Jones has properly conceded, the ground of review concerning actual bias cannot be said to be hopeless.  It is not, in my view, as presently advised, a strong one.  The circumstances upon which I understand that the applicant wishes to rely fall well short, in my view, of those considered by the Full Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505.

    The Full Court made it clear in Sun that actual bias may be established as an inference from circumstances and a finding of actual bias can be based on aspects of a Tribunal’s decision found to be explicable only, or at least most naturally, by bias such that the Court may conclude that the Tribunal has, at least in some respect, pre-judged the case so as to be unable or unwilling to decide it impartially.

    However, as Burchett J pointed out in the same case at page 555, a finding of bias is a grave matter, different in kind from a finding of mere error or even wrong headedness whether in law, logic or approach.

    To the extent that I am presently able to judge, it seems to me that the applicant in this case would face severe difficulties in establishing that the decision of which she seeks review was induced or affected by actual bias.

    In all the circumstances, there seems to me to be reason to conclude that, faced with the consequences for her application of Eshetu, this late attempt to place reliance on the ground of actual bias is a desperate attempt by the applicant to find a peg upon which she may continue to hang her application to this Court.

11. Having weighed up all of the circumstances, but in particular, those referred to above, I decline to grant the applicant the adjournment she seeks.  For completeness, I also record that I refuse the applicant leave to amend the particulars of her application by withdrawing the statement that she does not rely on the ground of review provided by s 476(1)(f) so as to allow her to place submissions before the Court today touching on that ground of which there are currently no particulars, except to the extent that such particulars can be deduced from the written submissions of the applicant provided to the respondent’s legal representatives late yesterday afternoon.

12. The application for an adjournment of the hearing of this matter is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             20 August 1999

Counsel for the Applicant:	Mr M. Papallo
Solicitor for the Applicant:	Coelho & Coelho, Solicitors
Counsel for the Respondent:	Mr R. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 1999
Date of Judgment:	5 August 1999