Guo Wei Rong v Minister for Immigration and Ethnic Affairs

In Guo Wei Rong v Minister for Immigration and Ethnic Affairs, the Federal Court of Australia was asked to rule on whether a member of the Refugee Review Tribunal could be cross-examined about her reasoning processes in conducting hearings on applications to review the Minister's decision to deny refugee status to two of the applicants. The applicants argued that the Tribunal member had shown actual bias against them. The legal issues were whether the statutory immunity afforded to the Tribunal member under s.166G(1) of the Migration Act 1958 could be invoked to prevent her from being cross-examined about her reasoning processes, and whether such cross-examination would be permissible to demonstrate actual bias.

The court held that the Tribunal member, clothed with the statutory immunity of a judicial officer, could not be cross-examined about her reasoning processes or motivation in making a decision. This was because the rationale for the immunity, which is to ensure that the Tribunal member's decisions are free from external influence, would be undermined if they could be cross-examined about their reasoning processes. The court distinguished the case from situations where the Tribunal member's conduct was not part of the inquiry they were authorized to undertake, such as when they were misled into signing documents they did not understand. The court ruled that the Tribunal member could only be cross-examined about events occurring outside the Tribunal, not relating to her reasoning processes.

The final orders were that Mr Rares was not permitted to ask Ms McIllhatton about her reasoning processes or motivation in making her decision, but could cross-examine her about events occurring outside the Tribunal, not relating to her reasoning processes. The court also ruled that the cross-examination could not trespass into the considerations which led Ms McIllhatton to reach the conclusions she did, nor into the way in which she exercised her powers.