Kwakye, Johnson v Minister for Immigration & Multicultural Affairs

[1998] FCA 1324

JOHNSON KWAKYE v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 358 of 1998
FED No. 1324/98
Number of pages - 22
Citizenship and Migration
Downlaod RTF

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

R.D. NICHOLSON J

Citizenship and Migration - visas - application for protection visa - refusal by delegate - decision of Refugee Review Tribunal affirming delegate's decision - whether procedures not observed - whether Tribunal decision involved an error law being an incorrect interpretation of the applicable law -whether failure to accord substantial justice and merits of the case - whether failure by Tribunal to act fairly - whether Tribunal actually biased.

Migration Act 1958, ss 420(2)(b), 475(1)(b), 476

Minister for Immigration and Ethnic Affairsv Singh (1997) 144 ALR 284, considered

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, distinguished

Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (Davies J, Federal Court of Australia, 24 February 1998, unreported), referred to

Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1995) 185 CLR 259, referred to

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, followed

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, followed

Senthilnathan Tharmalingam v Minister for Immigration and Ethnic Affairs [1998] Lindgren J, Federal Court of Australia, 19 May 1998, unreported, considered

Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, considered

Applicant A vMinister for Immigration and Ethnic Affairs (1997) 142 ALR 331, considered

ChanYee Kin v Minister for Immigration and Ethnic Affairs (1969) 169 CLR 379, considered

SYDNEY, 9 September 1998 (hearing), 20 October 1998 (decision)

#DATE 20:10:1998; PERTH

Counsel for the Applicant:	G Lombard
Solicitor for the Applicant:	None on record
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

R.D. NICHOLSON J

This is an application for an order of review under Part 8 of the Migration Act 1958 ("the Act") in respect of a decision made by the Refugee Review Tribunal ("the Tribunal") dated 9 April 1998. The decision of the Tribunal was that it was not satisfied the applicant is a refugee so that it affirmed a decision by a delegate of the respondent to refuse him a protection visa. The basis of the decision was the applicant was not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 August 1967 ("the Convention").

Statutory and legal context

The statutory and legal context within which this matter arises as stated in submissions is not put in issue.

Section 36 of the Act provides for a class of visa known as a protection visa for persons who seek refugee status. The Migration Regulations ("the Regulations") specify, as a criterion for the grant of a protection visa, that at the time of determination the Minister is satisfied the applicant is a person to whom Australia has protection obligations as a refugee under the Convention: the Regulations, Sch 2, cl 866.111 and cl 866.221. The definition of refugee in the Convention is contained in Art 1A(2). It requires such person to have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". The applicant must also satisfy certain interest criteria and the grant of the visa must also be in the national interest: cl 866.225 and cl 866.226 of Sch 2 of the Regulations.

Section 475(1)(b) of the Act provides a decision of the Tribunal is a "judicially reviewable" decision. Section 476 of the Act provides the grounds upon which an application may be made to this Court to review a judicially-reviewable decision and s 486 vests jurisdiction in respect of such decisions in this Court. Section 485(1) provides the Court has no jurisdiction in respect of such decisions other than as provided for by Pt 8 (ss 474-486) or s 44 of the Judiciary Act 1903 (Cth): Dai Xing Yao v Minister for Immigration and Ethnic Affairs & Anor (1996) 69 FCR 583 at 588; Minister for Immigration and Ethnic Affairs& Anor v Ozmanian (1996) 71 FCR 1.

Applicant's circumstances

The following account of the applicant's circumstances is taken from the facts as found by the Tribunal. As will appear, they are to some extent challenged by the applicant's case.

The applicant arrived in Australia on 11 January 1998 on a Ghanaian passport in the name of another, which contained an Australian visa. He claimed the passport was his and that he had obtained refugee status in Canada in 1991 and was a Canadian resident who had worked there as a labourer. He said he was married with a child and his wife and child were currently visiting Ghana. The true position became apparent and his visa was cancelled.

The following day the applicant advised the Department of Immigration and Multicultural Affairs ("the Department") of his true name. He said he was 35 years old and married with a child. Notes made at the time said he had fled Ghana in 1992 because he and his friends had been involved in demonstrations against the government and he was wanted by the special police. He claimed he had been living in Israel since 1992 but that his wife and child were currently living with her family in Ghana.

He further said he had travelled to Bangkok earlier in 1998 where he met the person whose passport he ultimately used to enter Australia. He had sent his Ghanaian passport to his wife in Ghana. He claimed he had only intended to visit Australia before travelling onto the United States where he planned to claim refugee status.

The applicant applied for a protection visa on 2 February 1998. In the application he described himself as from Suhan in Ghana and as having completed 16 years education and obtained qualifications as a plumber. He stated he had worked as a feed operator at the Ghana Cement Works from 1988 to 1992. In that year he claimed to have organised a group of people in his area to demonstrate in the streets against the election of President Rawlings. During the demonstration he and others had set fire to government vehicles and thrown stones at government department houses. The police came and fired warning shots so they ran away. He managed to escape, made his way to Togo from where he went to Eastern Europe before moving to Israel. The applicant claimed also that his wife had been arrested after his departure in 1992 but was later released because she was pregnant. She joined him in Israel but returned to Ghana in late 1997. He said she and his son were detained when they arrived at the airport and have not been heard from since.

In a written submission dated 6 February 1998 the applicant said his wife had returned to Ghana and he had never said she was living with her family. He stated he had travelled from Israel to Thailand on a Ghanaian passport given to him by a friend but did not have a legal passport of his own. In response to a U.S. Department of State Country report on Human Rights relating to Ghana, which had been forwarded to him by the Department, he forwarded a copy of a newspaper article from the Daily Graphic dated 5 April 1997 which stated the government had rejected a report from the Commission on Human Rights and Administration of Justice in that country.

On 13 February 1988 the delegate of the respondent refused the application. The delegate accepted the applicant may have left Ghana after participating in demonstrations in 1992 but did not accept his wife had been detained as a result. After reviewing a number of reports on the current situation in Ghana the delegate concluded it was a democracy in which those who oppose the government may express their views openly. She therefore did not accept the applicant had a well-founded fear of persecution in Ghana because of his participation in demonstrations in 1992.

On 18 February 1988 the applicant sought review of the delegate's decision. On 12 March 1998 he forwarded a submission in which he repeated his earlier claims. He added that he and his wife had left Israel in 1997 because the government had announced all illegal foreigners had to leave or they would be deported. He said that the person from whom he had obtained the Ghanaian passport had briefed him on what to say on arrival and that is why he did not tell the truth when he arrived. He denied that he had said his family were currently residing in Ghana or that he had sent his Ghanaian passport to his wife.

The applicant also forwarded to the department a statement from a Mr Peter Kyei who had known him for almost three years in Ghana between 1989 and 1991. He described knowing the applicant in a small group which met at a polytechnic to discuss politics and human rights issues. He regarded him as a person who spoke impressively about the rights of people. He had met him a few more times including at a meeting in Accra and distributing anti-Rawling's leaflets to shops in Accra. Mr Kyei stated that while he could not say for certain that the applicant had left Ghana for political reasons, he considered it was extremely likely.

The applicant also forwarded other information, including press articles.

Tribunal hearing

While in its reasons the Tribunal gave its own account of the hearing, it is necessary, given the nature of the grounds on which review is sought, to set out what occurred at the hearing as it appears from the transcript of the proceedings.

The Tribunal hearing took place on 23 March 1998 at 10.15 am before Ms R Smidt, member.

The following exchange took place at the commencement of proceedings ("passage 1"):

"MS SMIDT: Thank you. Is there some problem?

MR [URQUIJO]: There is bit of a problem. My name is Marcello Yukao, I am representative for Mr Johnson.

MS SMIDT: Have a seat, please.

MR [URQUIJO]: There is a bit of a problem. Perhaps if I can have another private minute to discuss an issue of real relevance to these proceedings.

MS SMIDT: Sure.

MR [URQUIJO]: There could be a request, and I emphasise there could be, a request for an adjournment.

MS SMIDT: That is extremely unlikely to be granted. I will warn you in advance.

MR [URQUIJO]: Yes, no, I mean - - -

MS SMIDT: I mean I would be happy to consider requests at the end of the hearing for additional time, although I will point out they are only granted in exceptional circumstances. But we are here now and I am certainly going to go through the claims. If there is additional time needed later I will consider that, but I am not - we are here now and I am go (sic) through the claims.

MR [URQUIJO]: Yes, but I also - - -

MS SMIDT: But if you want five minutes, that is fine."

Mr Urquijo signified the request for an adjournment could include a request that a reconstituted Tribunal hear the matter and the adjournment was granted on the basis that would be considered.

The hearing resumed at 10.25 am as follows ("passage 2"):

"...

MR [URQUIJO]: ... I have had opportunity (sic) to have a brief conference with my client and I thank you for that. The instructions that I have he requests that the matter be adjourned - that the matter be alternately referred to a different reconstituted tribunal. The main issue here is that in the case of my client there are two relevant aspects to the decision of this application and one is specifically a request to credibility. Credibility was to be supported and obtained by evidence that was to provided (sic) by a witness that is withdrawing if the present member were to go ahead with the proceedings. That would certainly deprive us of an important means for assisting my client. On that basis my client requests - - -

MS SMIDT: And why is the witness refusing to - who, I might add has already given evidence - refusing to give evidence because I am handling the case? Why is he doing that?

MR [URQUIJO]: The impression that I have is that there is a perception that the tribunal has previously dealt with matters concerning Africans from Ghana in a fashion that has resulted in no applicant being successful.

MS SMIDT: Well, I am not going to adjourn the case and I am not going to ask that it be constituted to somebody else. The witness is welcome to give evidence if he wishes to. He has already provided a witness statement so it seems to me in fact I already have his evidence. The fact that if he chooses not to give evidence, that is entirely up to him. It does not matter to be either way. How I have found on different cases is not, it seems to me, relevant on this case. Every case is dealt with individually and independently and there is nothing in what you have told me so far which I see as being cause for me to withdraw from this case and have it reconstituted. So I am not going to do that and we will proceed with the hearing.

MR [URQUIJO]: Just one second. Certainly I'm not in a position to enter into argument over this and neither do I - would ever wish to do so. To put it bluntly, there is obviously a perception of bias and as such a proceeding of this nature which are interlocutory [subsequently explained as intended to be "inquisitorial"] in nature - - -

MS SMIDT: Well, this isn't a court. We don't have any interlocutory proceedings.

MR [URQUIJO]: I mean are need to be on a - the proceedings need to be conducted in such a manner obviously that they are conducted in the confidence of the tribunal - - -

MS SMIDT: Certainly if - - -

MR [URQUIJO]: I am instructing you with the instructions that I have. It is nothing to do with like I have never been before a tribunal - - -

MS SMIDT: No, no, I know you are passing on instructions and I am explaining to you that it is clearly not possible for the tribunal to be constituted strictly in accordance with the wishes of an applicant on every case. If an applicant does not like a particular tribunal member or has certain perceptions about that tribunal member, then that is only relevant if there is some evidence of actual bias in which case perhaps you might have an argument. But I do not believe there are any arguments of that nature. I am intending to look at this case, as I have at all cases in the past, on its merits, on the evidence that's provided, and taking into account other relevant information which I have, which I intend to discuss today. So, as I say, I am not intending to withdraw. I have already the written statement from the witness, who is Mr Kyei, is it?

MR [URQUIJO]: That's correct, yes.

MS SMIDT: And it is my understanding that Mr Kyei knew Mr Kwakye, is that the correct pronunciation?

MR [URQUIJO]: Yes.

MS SMIDT: Yes, Mr Kwakye in Ghana but doesn't have any direct personal knowledge of the events which specifically led to him leaving the country. So it seems to me I already have the evidence in any event, and of course it's up to your client, his witness and you whether or not he provides the evidence and I am not prepared to either grant an adjournment, nor am I prepared to ask that the case be reconstituted. So I am planning now to proceed with the hearing and I am going to ask the hearing office to please swear in the interpreter. I am sorry, but it is not for you to dictate to the - - -"

Mr Kyei sought to press Mr Urquijo to make further submissions but when the Tribunal told him it was for Mr Urquijo to decide which submissions to make, he left the hearing room. It was concluded by the Tribunal with the concurrence of Mr Urquijo that Mr Kyei was not going to give oral evidence.

The hearing then continued ("passage 3"):

"MR [URQUIJO]: The tribunal is at liberty to either go along with the submission - - -

MS SMIDT: Indeed I am, and I am happy to hear your submissions and I am happy to consider them, but - - -

MR [URQUIJO]: Certainly. My submission is that my client would disadvantaged by not having the benefit of the witness elaborating on the evidence that he provided in writing.

MS SMIDT: But if the witness has chosen not to, I am not saying the witness can't give the evidence.

MR [URQUIJO]: It's all related to t his question that the - - -

MS SMIDT: Right. We are going to proceed. If there are any more submission you would like to make the end I would be happy to hear them.

MR [URQUIJO]: I think that would be - - -

MS SMIDT: We are going to proceed, okay."

The hearing then proceeded. The Tribunal member outlined her understanding of the requirements that the applicant would have to meet in order to be granted a protection visa. The applicant then gave sworn evidence, aspects of which it will be necessary to return in consideration of one of the grounds of review in relation to the hearing.

At the conclusion of his evidence his representative raised again the request that the Tribunal discontinue the proceedings and be reconstituted in the future. In the result additional time was given for supplementary written submissions.

As the reasons of the Tribunal record, during the applicant's evidence the Tribunal put to him matters with which the Tribunal member had difficulty in relation to his claims, namely:

* his failure to seek assistance from the United Nations Commissioner for Refugees ("UNHCR") while in Israel.

* his failure to tell the truth about his identity and to ask for protection as a refugee when he first arrived in Australia.

* the differing accounts he had given of his wife's whereabouts.

* his differing accounts as to whether he had held a Ghanaian passport.

* the Tribunal's knowledge of country information to the effect that Ghana was a democratic country in which individuals involved in peaceful and legitimate opposition to the government were not generally at risk of serious harm amounting to persecution - so that his evidence of the continuing interest the Ghanaian authorities had in him because of his participation in a 1992 demonstration, and that his wife had been detained in late 1997 because of his political opinion, was to be doubted.

* In any event prosecution for such offences as concerned him was part of the normal operation of the law in a democracy and could not constitute persecution for a Convention reason.

Subsequent written submission

In the written submissions filed on behalf of the applicant subsequent to the Tribunal hearing his representative repeated the submissions earlier made to the Tribunal. These were that the applicant had been disadvantaged by not being interviewed by an officer from the Department; his expectation that this would be remedied at the Tribunal was not realised because he considered the Tribunal member was biased against Ghanaian applicants; and because Mr Kyei, on whom he intended to rely for corroborating evidence regarding his case, refused to give evidence at the hearing when he found the Tribunal member was the person who had found in an earlier application that Mr Kyei was not a refugee. It was also submitted the refusal of the Tribunal member to disqualify herself meant the applicant was not emotionally able to present his best case during the hearing. The submission contended that, given the fact the applicant was not interviewed by the primary decision-maker, the decision of the Tribunal member to proceed with the hearing despite his objection raised "at the very least, a reasonable apprehension that the Tribunal is affected by actual bias."

Tribunal's reasons on merits of claim

It is accepted for the applicant that the Tribunal directed itself correctly to the understanding of the character of the well founded fear which the applicant was required to establish. The Tribunal's statement was:

"To be eligible for a protection visa an applicant must have a well founded fear that they will be persecuted for a Convention reason on return to their country of nationality. This means that they must be afraid to return to their country of nationality and there must also be a real chance that they will face serious harm or discrimination or an abuse of their fundamental human rights in that country within the reasonably foreseeable future. Furthermore, the harm must be inflicted as part of a systematic course of conduct directed at them or a group to which they belong, and it must be motivated by an intention or desire to inflict harm on them because of their race, religion, nationality, membership of a particular social group or political opinion. The threat of harm need not be the product of government policy or activity; it may be enough that a government is unwilling or unable to protect an individual from persecution. In cases where protection of the country of nationality is available, the person concerned is not in need of international protection and is not a refugee. In cases where the risk of persecution only exists in a particular area of the applicant's country of nationality, they will not be considered to be in need of international protection unless it is unreasonable to expect them to relocate to an area where they are not at risk of persecution."

In concluding it could not accept the allegations made by the applicant the Tribunal relied on the following matters, being essentially those put by the Tribunal to the applicant:

* his failure to approach the UNHCR for assistance while in Israel.

* his failure to honestly explain his situation when he first arrived in Australia.

* the apparent discrepancies between his evidence concerning the whereabouts of his wife.

* similar discrepancies in his evidence concerning his possession of a Ghanaian passport.

* the evidence concerning the country situation in Ghana.

The Tribunal then made the following conclusion and finding:

"In light of the evidence discussed above, even if I accept that Mr Kwakye organised and participated in a small demonstration of some 20 people protesting against the victory of President Rawlings in 1992, I do not accept that his wife was detained because of this in 1992, nor in 1997. Nor do I accept the (sic) Mr Kwakye himself faces more than a remote chance of being killed, detained or experiencing any other form of serious harm in Ghana within the reasonably foreseeable future because he participated in student political activities in the early 1990s and organised a demonstration in late 1992."

Additionally, the Tribunal concluded that, even if it accepted the applicant is still wanted by the government of Ghana because he organised a demonstration in 1992 in which he and others destroyed government vehicles and stoned government houses, prosecution for violence of that kind was part of the normal operation of the law in a democracy and does not constitute persecution for a Convention reason. The Tribunal did not accept that the applicant would face charges on return to Ghana merely because he had organised an unauthorised demonstration in 1992.

These findings led in turn to the finding that the applicant was not entitled to a protection visa.

In relation to these overall conclusions the Tribunal referred to the written statement of Mr Kyei:

"In reaching this decision, I have considered the statement made by Mr Kyei. I note that there are several inconsistencies between the evidence provided by Mr Kyei in support of his own application and the evidence contained in this statement. For example, in his own application, he made no mention of attending meetings at the Takoradi Technical School. However, even if I accept all of Mr Kyei's evidence regarding his association with Mr Kwakye, it does not alter my conclusion that Mr Kwakye does not have a well-founded fear of persecution in Ghana."

Tribunal's reasons on bias claim

On the issue of the claim of bias against Ghanaian applicants generally, the Tribunal said:

"I have considered Mr Kwakye's request that his case be heard by a differently constituted Tribunal because I am biased against Ghanaian applicants. It is my understanding that, for a claim of actual bias to be made out, it must be demonstrated that the decision maker had a closed mind to the issues raised and was not open to persuasion by the applicant's case. However, this does not mean that a decision maker must approach an application with an empty mind, nor that she or he cannot have formed preliminary views prior to the hearing or the ultimate determination of a case. In the course of my work over the last four years I have decided a number of applications involving Ghanaian applicants for refugee status and have sought to inform myself about the current situation in Ghana and as a consequence have formed some views on the general situation there. Furthermore, I had formed some views on Mr Kwakye's application prior to the hearing, because, as required by the Migration Act, I had considered whether I could reach a favourable decision on his case on the basis of the written submissions and evidence which he had provided together with other relevant information available to me. I decided that I was not satisfied on this material alone that he was entitled to a protection visa..."

The Tribunal then recorded a number of the matters which subsequently had been put to the applicant during the course of his evidence and concluded she did not consider her attitudes or actions before, during or after the hearing were affected by bias against Ghanaian applicants in general or the applicant in particular.

The Tribunal member also said she had refreshed her memory of Mr Kyei's case and described it as follows:

"Mr Kyei claimed that he had fled Ghana in 1991 because he was wanted by the authorities as a result of his participation in an anti-government student group. Despite some reservations about the credibility of some claims made by Mr Kyei, I accepted that he may have been involved in some political activities prior to his departure from Ghana and may have faced some problems with the authorities as a result. However, I found that there had been significant changes in Ghana since 1991 and he did not face a real chance of persecution for reasons of his political opinion on his return to Ghana."

In relation to the claim of bias based upon the absence of Mr Kyei's evidence, the Tribunal said:

"Nor do I believe that the fact that I had previously decided that Mr Kyei was not a refugee indicates that I have a closed mind to any evidence he may provide. As the details of his case set out above indicate, I had difficulty accepting his claims regarding his activities prior to this departure from Ghana, but nonetheless accepted the substance of these claims and that he may have been at risk of detention at the time of his departure from Ghana. His application failed primarily because I considered that there had been significant changes in Ghana since his departure and did not accept that he would be at risk of persecution on his return. Finally, as stated at the hearing, I was willing to hear Mr Kyei's oral evidence and I do not accept that his decision not to speak means that I am biased against him or Mr Kwakye. Nor do I consider that Mr Kwakye was disadvantaged by Mr Kyei's decision not to give oral evidence, as I already had Mr Kyei's written statement."

Evidentiary issues

On the hearing of this application the case for the applicant sought to lead affidavit evidence to which objection was taken. The first objection was to portions of an affidavit by Mrs Belinda Kyei, wife of Mr Kyei. In a portion to which no objection is taken, she affirmed and declared that she was present at the hearing. The remaining paragraphs of the affidavit, to which objection is taken, seek to record her observations and opinions concerning the conduct of the Tribunal hearing. Objections are taken on the grounds of opinion, hearsay and relevance. I allow these objections. See in particular Evidence Act 1995 (Cth) ss 59 and 76 and the exceptions to each of the rules, none of which are applicable here.

Then objections are taken to portions of an affidavit by the applicant's representative so far as it contains a sentence reading "the only relevant source of material apparently not considered [by the Tribunal] is the Canadian database material attached as Annexure 'I' to this affidavit, and the bulk of research resources referred to therein". That is followed by an additional sentence "I obtained the material in Annexure I from the following Url (internet address: The objection to these sentences is they raise irrelevant material because they do not address matters which were before the Tribunal. For the applicant it is contended that knowledge of such evidence is relevant to enable the Court to assess an argument that the Tribunal was under an obligation to make further inquiries. However, for that ground to be argued, it is not necessary for the applicant's case to establish there is additional data which was not before the Tribunal. The argument will be capable of being sustained in law independently of evidence. The objection is allowed.

Failure to observe procedures: substantial justice and merits

Section 476(1)(a) of the Act provides that a ground of review of a judicially-reviewable decision (into which category the decision of the Tribunal falls) is "that procedures which were required by this Act or the regulations to it be observed in connection with the making of the decision were not observed". In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 it was held by a majority of the Full Court of this Court that a ground of review under s 476(1) of the Act is a failure to observe the procedures prescribed by s 420 of the Act.

Section 476(1)(e) of the Act permits a ground of review "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law ... ". In Eshetu it was also held that the words "the applicable law" in this paragraph include not only criteria specified in the Act and regulations but also the substantive elements of s 420(2)(b) of the Act.

Section 420(2)(b) provides that the Tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case. It is upon this the case for the applicant first relies.

For the respondent it is accepted that the Court is bound by the decision of the Full Court in Eshetu. However a formal submission is made that Eshetu was incorrectly decided.

In support of this ground the applicant's case places reliance upon what was said by Finkelstein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 402. In Re Minister for Immigration and Multicultural Affairs; Ex parte Singh (1998) 72 ALJR 1168 at 1170 Haynes J referred to the decision in Epeabaka but declined to express any view on the correctness of it, simply assuming without deciding that the principle applied or arguably applied to the proceedings in the matter before him. There his Honour concluded an obligation upon a Tribunal to decide a case on probative evidence required the Tribunal to rationally consider that evidence. He did so on the basis of acceptance of the views of Brennan J in Pochi v Minister for Immigration and Multicultural Affairs (1979) 26 ALR 247 and on appeal (1980) 31 ALR 666 in the decision of Deane J with whom Evatt J agreed. He did not accept that Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 had stated that those statements did not represent the common law in Australia (contra Batt J in Roads Corp v Dacakis [1995] 2 VR 508 at 520). Finkelstein J continued by distinguishing a failure to rationally consider probative evidence from the ground that a decision was irrational, stating that a decision which was not the result of a rational consideration of probative evidence was not "irrational" in the required sense.

For the respondent it is contended that Finkelstein J in Epeabaka erred in not reaching the view formed by Batt J that what was said by Mason CJ in Bond overruled the statements in Pochi upon which Finkelstein J relied. It is not necessary that issue be resolved here, for reasons which follow.

What the case for the applicant draws from the statement by Finkelstein J is a further proposition, namely that a failure to consider probative evidence includes a failure to take reasonable steps to obtain probative evidence where a Tribunal has the resources to do so and the steps are not beyond its resources or unduly burdensome with respect to time. Furthermore, it is submitted the obligation to obtain such information may be greater where the opportunity for an applicant to do so is non-existent or restricted.

The matters which the case for the applicant contends the Tribunal ought to have taken steps to obtain probative evidence about are the following:

a) To what extent does DFAT information convey an accurate picture given that DFAT does not have a mission in Accra? How reliable is it compared to other publicly available sources? On what evidence did DFAT rely on to reach its conclusions? What was the total length of time spent by DFAT officers in Ghana in the twelve months prior to the making of each of the reports quoted?

b) What political lens has been applied to the US State Department Country Report on Human Rights Practices? What explains the differences in emphasis between the US State Department Reports, the Amnesty reports, and the Canadian database material?

c) To what extent does reporting by Amnesty International of political detainees include those allegedly guilty of political offences?

d) To what extent should the United States State Department country profile prepared in May 1994 for officers assessing asylum claims ... be preferred to more current and independent reporting?

e) What independent information is available about the incident which caused the appellant problems? To what extent should the Tribunal have considered an approach of the kind exemplified by the Canadian Database material in annexure I to the affidavit on country information ...?

f) To what extent are amnesties being applied to those involved in political crimes in the events of 1992 ...?

g) What is the operation of the Ghanaian law with respect to those accused of political offences, taking into account pars 84-86 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee status, [cited below]."

The powers of the Tribunal are set out in s 415 of the Act which permits it to "exercise all the powers and discretions that are conferred by this Act on the person who made the decision". By s 341 the powers of the review officer are expressed in the same terms and so relate back to the powers of the original decision-maker. Section 45 creates an obligation on an applicant to apply for a visa and (per s 47) to do so through a valid application form. The form is thus the vehicle for an applicant to make information available for consideration in conjunction with the application, in accordance with the Regulations. Section 56 provides a discretion in the Minister to "get any information that he or she considers relevant" and requires that to be taken into account if obtained. Section 58 specifies the way in which this is to be done.

When an adverse decision is made and an application for review is made to the Tribunal the duty of the Tribunal is to "review the decision" unless the Minister has issued a conclusive certificate: s 414. In the case of later applications for review where there has been a prior determination by the Tribunal, the Tribunal is only required to consider new information: s 416. Other relevant sections were addressed by the Full Court (speaking through a majority constituted by Black CJ, von Doussa, Sundberg and Mansfield JJ) in Minister for Immigration and Ethnic Affairsv Singh (1997) 144 ALR 284 at 290-291 where it was said:

"Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the tribunal to make an inquiry of the nature suggested here. The way in which the tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s 424 does not apply (ie where there is no review "on the papers"), the tribunal must give an applicant an opportunity to appear before it to give evidence (s 425(1)(a)), and 'may obtain such other evidence as it considers necessary": s 425(1)(b). An applicant may give the tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice: s 426(2). If the tribunal is so notified, it must have regard to the applicant's wishes, but it is not required to obtain evidence from any such person: subs (3). Section 427(1)(d) empowers the tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act."

The majority also stated that there was no general rule the Tribunal was obliged to verify the disputed authenticity of an official document by inquiry through official channels but left open the question whether this might be an appropriate course of action in a given case.

In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548. Wilcox J, with whom Burchett and North JJ agreed (subject to the views which they relevantly held on the applicability of Eshetu), said at 548 that if a Tribunal's treatment of the issues is so unreasonable as a result of a failure by a decision-maker to obtain important information on a central issue for determination which the decision-maker knows to be readily available, it may be open to conclusion the decision could not have been made by a reasonable person so that there has not been "substantial justice". There the Tribunal member failed to obtain readily available information in respect of four matters: confirmation of Mr Sun's identity by an inquiry to a particular address; determination of what was meant by "recently" in respect of a particular mark; determination of the question whether photographs brought to Australia by Mr Sun were made with a particular brand of camera; and information about Australian visas issued in Papua New Guinea in 1993 to a particularly named person.

The circumstances in Sun are entirely distinguishable from the present case. There was not here a failure by the decision-maker to obtain important information on a central issue for determination that the decision-maker knew to be readily available. The information listed in pars a) - g) above is not information capable of such characterisation. Those matters were not matters of evidence arising in the course of the inquiry in circumstances where it was apparent that there was other information readily available.

What the submissions for the applicant really invite the Court to do is to impose its own precepts of merits review in the particular circumstances on the Tribunal. The submissions assert the Tribunal ought to have conducted its inquiry by considering the matters listed in pars a) - g). The requirement that the Tribunal must act according to substantial justice and the merits of the case is not a ground permitting review of a decision on the ground it is substantially unjust: Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (Davies J, Federal Court of Australia, 24 February 1998, unreported). The Court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1995) 185 CLR 259 at 271-272. The Court is clearly precluded from doing that by the provisions of s 476 of the Act even if those provisions are understood as incorporating the features of s 420(2)(b).

Additionally, examination of the reasons of the Tribunal does not show there was a failure to rationally consider the probative evidence which was before the Tribunal. On the contrary, the Tribunal most clearly did rationally consider that evidence and formed its view concerning the credibility of the applicant's evidence.

In ChanYee Kin v Minister for Immigration and Ethnic Affairs (1969) 169 CLR 379 at 428 McHugh J said:

"It was unlikely ...that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understandings of conditions in his or her country of nationality."

In the present case the Tribunal had its own understanding of conditions in the applicant's country of nationality. For a number of reasons previously listed, including that understanding, it did not regard the applicant's claims as "plausible and coherent". It was under no obligation to accept evidence concerning which it was in a state of positive disbelief: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 191 per Foster J. It was clearly open to the Tribunal to prefer the independent evidence before it concerning the human rights situation in Ghana and to rely upon the inconsistencies listed by it in reaching the conclusion that it should not accept the applicant's evidence. It is no part of the function of the Tribunal to uncritically accept an applicant's claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J.

Although submissions were made for the respondent that the Tribunal was entitled to its approach because the credibility of the applicant was largely a matter of impression, I do not refer to the authorities cited in support of the argument because I do not consider the reasons of the Tribunal show the demeanour of the applicant played any part in its reasoning. I appreciate that the absence of reference to an applicant's demeanour does not mean it played no part. However, I consider that this is a case where the issue was the consistency of the evidence of the applicant.

For these reasons I consider the applicant has not made out a case of failure to act according to substantial justice and merits of the case, whether applied through s 476(1)(a) or (e).

Absence of fairness

It is next submitted for the applicant that the Tribunal failed to provide a mechanism of review which ["that"] is fair as required by subs 420(1) of the Act. The argument is that the requirement of subs 420(1) for fairness arises for application pursuant to s 476(1)(a) and/or (e).

The case for the applicants on this ground is developed as follows. It contended there were a number of matters from which, either separately or in combination, the absence of fairness can be inferred. I deal with these as they were put.

(1) The failure of a witness as to credibility to give oral evidence.

On the facts it was the witness who withdrew. There was no refusal by the Tribunal to hear the witness if he had chosen to give oral evidence. In any event the Tribunal had the witness's written statement. The evidence in the written statement was not evidence directed to a central issue for determination, as to which the witness was unable to give evidence.

(2) Failure to recognise that the prior findings by the Tribunal in relation to the witness may have disadvantaged the applicant.

This is really a submission directed to the contention of actual bias, addressed below. However, as the Tribunal's reasons relating to Mr Kyei's application record, while the Tribunal member had some reservations about the credibility of some claims by Mr Kyei, she decided Mr Kyei's application on the basis of accepting his claim that he may have been involved in some political activities prior to his departure from Ghana and may have faced some problems with the authorities as a result. His credibility was not therefore the basis for her decision concerning Mr Kyei. The application was resolved on her view that there had been significant changes in Ghana since 1991, with the consequence that he did not face a real chance of persecution for reasons of his political opinion on his return to Ghana.

(3) Initial (and continuing) prejudice towards the suggestion of an adjournment by the applicant's solicitor.

In connection with this and other submissions relating to fairness I have listened to the tape of the proceedings before the Tribunal and also referred to the transcript. The impression I have from hearing the tape is that the Tribunal member was not as authoritative as a reading of the transcript may suggest.

This submission is supported particularly by reference to passage 1 above.

The purpose the adjournment was sought was to have the Tribunal reconstituted. Unless the ground of bias can be made out, there was no unfairness in the ultimate refusal to grant the adjournment.

(4) Failure to perceive the possibility of unconscious bias as an element of actual bias.

This contention is supported by reference to portions of passage 2 above. Again this contention depends upon whether the ground of actual bias can be made out.

(5) Failure to allow the applicant's solicitor to take further instructions after the bias point was raised and before proceeding to hear evidence.

This refers to passage 3 above.

The transcript and tape disclose that a short adjournment to enable the solicitor to take instructions was allowed. No further adjournment was sought until the close of submissions when it was submitted an adjournment was appropriate to enable the Tribunal to be reconstituted. The case for the appropriateness of an adjournment rests entirely on whether the ground in relation to bias can be made out.

(6) Fear of disproportionate response to political offence.

The applicant's case contended the Tribunal concentrated on the provenance of the newspaper articles submitted by the applicant rather than their content and that there was a failure to ascertain their probative implications.

Examination of the transcript shows the Tribunal put the newspaper articles to the applicant in the following terms ("passage 4").

"MS SMIDT: Okay. Now, you've sent me some newspaper articles from newspapers in Ghana. Who sent you those articles?

THE INTERPRETER: A cousin.

MS SMIDT: What does your cousin do?

THE INTERPRETER: He's a trader. He trades - he has a shop, a small shop in the open market.

MS SMIDT: I guess I'm just a little bit curious. These newspaper articles seem to have come out of the library of the Armed Forces Academy in Ghana. And they have got - see the little stamp there? It says Armed Forces College.

THE INTERPRETER: Yes, he say I said that it came from there but he doesn't know how the cousin got it from there."

The articles in question described the disproportionate response of commandos stationed in the Accra Castle to the theft of a video deck, tape recorder and a remote control handset. The argument then runs, given the applicant's case for refugee status is that he faces disproportionate punishment for a political crime, the Tribunal ought to have attempted to assess the contents and relevance of these articles during the hearing and to have tested the applicant's evidence concerning the nature of his activities in 1992 against that background. It is said the Tribunal failed in particular to identify whose cars and houses were the subject of the damage in the street riots of 1992 and the extent of the damage.

Then it is submitted that at this stage of the hearing the Tribunal member had already indicated she was not prepared to consider the article on political offences, and the following passage is cited in support ("passage 5"):

"Ms Smidt": Okay. Okay, now, there's one other thing that I need to point out to you, and that is that even if I accept your claims at face value, it doesn't seem to me that you meet the definition of a refugee. And that's because - you remember I said at the beginning that to be a refugee you must fear that you will be persecuted because of your race, religion, nationality, membership of a particular social group or politician (sic) opinion. Okay, only people in this category can be considered refugees, and people who fear that they will be harmed for some other reason if they go home won't be. So - let me finish. So generally, people who have broken the law or committed offences in their country of origin and might be prosecuted for those reasons if they go home won't be considered to be refugees under this definition.

Now, you said in your application that you organised a demonstration where people set fire to government vehicles and threw stones at government department houses. Now, if you do that in Australia or in any other country that I can think of, you will be arrested and you will be charged with offences against the law. And it seems to me that if the Government - if the authorities in Ghana want to arrest you and charge you with offences in relation to your actions in setting fire to vehicles and stoning houses, then this is just the normal operation of the law and it isn't persecution because of your political opinion or any other reason. Do you understand?"

The submission for the applicant is that the importance of the applicant's participation in the activities in 1992 was therefore unacknowledged by the Tribunal.

Earlier the Tribunal member had said:

"So it's not my understanding that somebody who had merely participated in demonstrations in 1992 after the elections would be of continuing interest in 1997 merely for peacefully expressing a political view at that time".

For the applicant it is said this is not what was put to the Tribunal concerning the nature of the applicant's political involvement - in particular it was not put as mere participation nor mere peaceful expression of a political view.

These submissions are all related to the Tribunal's alternative conclusion to the effect that, even if it accepted the applicant was still wanted by the government because he organised a demonstration in 1992 in which he and others destroyed government vehicles and stoned government houses, prosecution for violence of this kind is part of the normal operation of the law and does not constitute persecution for a Convention reason.

In Senthilnathan Tharmalingam v Minister for Immigration and Ethnic Affairs [1998] 537 FCA (19 May 1998), Lindgren J said:

"In Welivita v Minister for Immigration and Ethnic Affairs, 18 November 1996, I set out (at 24-25), with approval, the following paragraphs from the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, January 1992):

'84. Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically-motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee.

85. Whether a political offender can also be considered a refugee will depend upon various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.

86 In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment - within the law - for an act committed by him.'

Where there is extra-judicial or unduly severe punishment, the inference is open that the punishment is imposed, not for contravention of the criminal law, but for a Convention reason: Wu v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 524 at 526D (Lee J)."

For the respondent it is submitted that in passage 5 the Tribunal was putting the difficulties faced by the applicant to him, thereby being fair. In my opinion, that is correct. It is not a case that the Tribunal was not acknowledging the importance of the applicant's submission: rather the Tribunal was putting its preliminary view to the applicant to enable it to be tested.

In relation to the submissions that the Tribunal failed to consider the political character of the applicant's crime, the respondent directs attention to what was said in Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358 at 386. Wilcox J was there considering provisions of the Extradition (Foreign States) Act 1966 (Cth) when he said at 386:

"... Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organised, prolonged campaign involving a number of people. The offence must be directed solely to that purpose; it must not involve the satisfaction of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the campaign may be a political offence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be."

In Todea v Minister for Immigration and Ethnic Affairs (1994) 20 ALR 470 at 484 it was contended that over-reliance on the Handbook prevented a tribunal from directing its attention to the principles governing the concept of "offence of a political character" in the law of extradition as stated in Prevato. In response, the applicant disputes the authority of the statement by Wilcox J.

The essential point, however, is that the Tribunal had before it a large amount of country information on which it was entitled to rely to reach its conclusions that the applicant would not be subject to disproportionate punishment for the Convention reason of his political opinion and that, if he were punished, it would be by application of the law in respect of the results of his actions against property. While the applicant's evidence would have left the Tribunal in no doubt that he subjectively feared disproportionate punishment because of his actions deriving from his political opinions, it was open to the Tribunal to conclude that such fear was not well-founded. There was no unfairness in the way the Tribunal reached its conclusions relevant to these issues.

Actual bias

The final ground raised for the applicant is that the decision of the Tribunal was affected by actual bias: par 476(1)(f) of the Act. This ground is particularised in three ways, namely, the Tribunal did not adequately and impartially consider the adjournment application at the outset of the hearing, nor the reasons of the witness, Mr Kyei, for refusing to give oral evidence, nor the application that the Tribunal member withdraw from the matter.

The ground of jurisdiction based on actual bias provided for in s 476(1)(f) has been considered in a number of authorities to which the Court was referred and from which it is not necessary to make extensive citation here. The paragraph was considered by the Full Court in Sun Zhan Qui. Wilcox J at 551 accepted actual bias involved a disposition to "approach the issues in the case otherwise than with an impartial and unprejudiced mind: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352." He pointed out it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested: Re R V Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264. He continued:

"...Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unreported) that s 476(1)(f) requires an applicant to show 'that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case'. That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). He made three points. First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm."

At 555 Burchett J said:

"Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the tribunal's decision as explicable only, or at least most naturally, by bias. When the court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word 'actual' strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.

...

In my opinion, the statute, when it used Devlin LJ's expression 'actual bias', substituted a test that looks to whether the tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say 'at least in some respect' because the statute extends to the situation where 'the decision was ... affected ...by actual bias'. The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, 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."

North J at 563 said that where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances: Re Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224. He said that case demonstrated proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, taken together, form the whole picture leading to the conclusion of pre-judgment. It was, he said, unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. In his view the case also demonstrated that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant.

A statement in Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289 is also relied upon by the parties in this proceeding. Finkelstein J at 292 there recognised that a past view as to the credibility of non-expert witness may suffice to ground disqualification of a judge where the test is a reasonable apprehension of bias (as distinguished from actual bias). At 290 he said that he accepted most often actual bias would result from an intentional state of mind.

The applicant's case on actual bias is supported by reference to s 425 and the provision which it makes that, where review on the papers does not apply under s 424, the Tribunal "may obtain such other evidence as it considers necessary". It is submitted that if in the exercise of its discretion a Tribunal properly does not determine to obtain such other evidence, it is open to inference there has been actual bias.

In support of the contentions that unintended actual bias should be inferred in all the circumstances, the case for the applicant relies upon a number of factors:

(1) Failure to disclose relevant country information.

I accept the submission for the respondent that the Tribunal is under no obligation to disclose country information beyond the extent which it did so in disclosing the substance of its concern emerging from this material. Its comprehension of the material before it was fully placed before the applicant and was shown to be widely based as to its sources: Kioa v West (1985) 159 CLR 550 at 587 and 629.

(2) Failure to allow appropriate discussion of the disqualification issue.

To demonstrate actual bias it would be necessary for the case for the applicant to show the Tribunal has closed its mind with respect to the substantive application for a protection visa and not only upon the issue of whether it should adjourn to allow reconstitution.

(3) Failure to make appropriate enquiries concerning facts said to assist the applicant's case.

It is said, in exercising its inquisitorial role, the Tribunal should have considered the possibility the applicant was in fact a political offender, whereas it made no effort to instruct itself on that issue.

The allegation that there was a failure to make inquiries has previously been addressed. I rely on those reasons to conclude it is not open to inference that the Tribunal failed to make inquiries due to actual bias.

(4) Demeanour of Tribunal

It is then submitted the Tribunal's demeanour, particularly towards the applicant, was at times authoritarian and lacking in objectivity.

Examination of the transcript and the reasons, as well as a hearing of the tape recording, support a finding that the Tribunal was on occasions authoritative. A hearing of the tape makes apparent this occurred in circumstances where the Tribunal member wished to complete putting a statement to the applicant through the interpreter before allowing opportunity for response. I find no evidence of lack of objectivity. Examination of the transcript and the reasons show the Tribunal was concerned to put to the applicant all the matters which the Tribunal member then considered were adverse to the applicant's case. The reasons for those conclusions, namely the reliance on a wide reading in relation to Ghana in particular, were explained. If the manner was authoritative, the communications were not evidence of lack of objectivity. Even less so did they exhibit a closed mind because they put to the applicant observations he was required to counter if he was to succeed. The Tribunal invited submissions directed to displacing the preliminary held view. There is no evidence of a closed mind from the demeanour of the Tribunal as apprehended through the transcript or the recording of the hearing.

(5) Failure to apply standards of refugee law.

The applicant's case submits there was a failure to apply standards of refugee law according to the minimum standards by the UNHCR Handbook and under Australian law.

The Handbook referred to is that described by Kirby J in Applicant A vMinister for Immigration and Ethnic Affairs (1997) 142 ALR 331 as follows:

"In 1979, the United Nations' High Commissioner for Refugees published the Handbook on Procedures and Criteria for Determining Refugee Status: UN Doc HCR/Pro/4 (1979) ... (the handbook). Its purpose was to assist parties to the Convention and Protocol in determining claims to refugee status. It drew on the experience of the High Commissioner's office as well as the practices of contracting States after the Convention came into force in 1954. The handbook is frequently cited in refugee decisions in the United States. Upon the precise issue in hand, it has been criticised as unhelpful: Sanchez-Trujill v Immigration and Naturalization Service (1986) 801 F 2d 1571 at 1576. It may be used in Australia to assist in the interpretation of the Convention: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392; 87 ALR 412) so long as it does not purport to usurp the function of the court or tribunal in giving meaning to the words of the Convention definition: Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 414; 111 ALR 417.

In Chan Yee King v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 Mason J stated that he regarded the Handbook "more as a practical guide for the use of those who are required to determine whether a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention."

Whatever the status of the Handbook, the case for the applicant does not make out a mis-application of it in accordance with the permissible principles. As has been stated, it is common ground the Tribunal correctly directed itself according to law when it stated the principles of law by which it was required to reach its decision.

(6) Prior finding of bias.

In Sun the same Tribunal member was found to have been actually biased. It is submitted for the applicant that in the present case she might be subject to a lower standard of proof in relation to the issue of actual bias.

In Sun at 553 Wilcox J, while critical of the Tribunal member's failure to follow through obvious lines of inquiry, found it unnecessary to reach a conclusion about actual bias and left the issue open. Burchett J at 562, after considering various ways in which the Tribunal repeatedly drew extremely adverse conclusions against the appellant in that case on what he considered to be "the flimsiest grounds", considered that the accumulated matters established the decision there was affected by actual bias. North J at 562 was of the same view.

The findings in that respect in Sun carry no weight in the determination of the questions of fact necessary to establish actual bias in the present proceeding. This decision must be made in all the circumstances of this case. Furthermore, there is an entire absence of any authority to suggest that the standard of proof on that and related issues should be lowered because of the findings made in Sun. There is no reason of legal policy why that should be the case and much legal reasoning relating to similar fact evidence why it should not be the case.

On the question of legal policy the case for the applicant makes some additional submissions. It is said there were three considerations relevant to resolution of this proceeding. The first is there are strong public policy grounds for maintaining the impartiality of any public decision-making body. Secondly, it is submitted what needs to be demonstrated is not whether the Tribunal had a totally closed mind but whether there was a departure from acceptable standards of impartiality, particularly with respect to a statutory decision-making body entrusted with a public duty of fairness by s 420. Thirdly, the allegation of actual bias, it is said, is more likely to lie against a body with inquisitorial functions.

In relation to the first factor, in the case of a reasonable apprehension of bias a distinction may be drawn between a judge or tribunal presided over by a person with legal training and a lay tribunal so that apprehended bias may be more easily made out in the case of a lay tribunal: Bilgin at 292 per Finkelstein J. Furthermore, the application of the law to a tribunal is more likely to be affected by its statutory context: cf Bilgin at 288. But it is not the law that actual bias should be applied according to some lower standard in the case of a tribunal rather than a court. This review is not conducted on the existence of any such distinction.

As to the second factor, I have already referred to the test of actual bias as recognised by the law through high judicial pronouncements. There is no authority that such law should be re-written to address a "departure from acceptable standards of impartiality".

As to the third factor, that essentially repeats the first, which I have already addressed.

I have also considered whether the items listed above under this heading, taken together, evidence actual bias on the part of the Tribunal. I have also taken into account the reasons of the Full Court in Sun and in particular what was said there about the conduct of the Tribunal which was there in issue.

Having considered all these matters, I am of the opinion the applicant's case that there was actual bias in the Tribunal is without any foundation.

Conclusion

For these reasons I consider that the applicant's case does not make out any of the grounds of review. Accordingly the application should be dismissed.