Minister for Immigration, Local Government and Ethnic Affairs v Mok

103s J 94.

JUDGMENT No. .

.,,,,,-

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY	)	NO. VG508 of 1994
GENERAL DIVISION	)

BETWEEN: THE MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS AND

MALCOLM PATERSON

AND :

MOK GEK BOUY

Respondent

CORAM :

BLACK CJ, LOCKHART and SHEPPARD JJ.

CORRIGENDUM TO REASONS FOR JUDGMENT

DELIVERED ON 22 DECEMBER 1994

Delete the words and figures "60 per cent" from p. 70 of the judgment of Sheppard J and substitute therefor the words "two- thirds".

I certify that this is a true copy of a corrigendum made to the reasons for judgment in this matter of the Honourable Justice Sheppard.

Associate RA.4 G%+,	RECEIVED
FEDERAL COURT OF

PRINCIPAL REGISTRY

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - imm~gration - application to review decislon of Minister's delegate refusing respondent (to appeal) refugee status - whether decis~on

should be set aside because reasonable bystander or party acting reasonably might reasonably apprehend bias on decision- maker's part - cons~deration of relevant principles - whether respondent had well-founded fear of persecution - analysis of decision-maker's reasons for decision - whether decision-maker applied correct principles.

Miaration Act 1958 (as in force 3 November 1992), ss 4, 22AA,

22AB, 22AD

Convention relat~ng

to the Status of Refugees 1954, Article 1.

Protocol relating to the Status of Refugees 1976.

THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC

AFFAIRS AND MALCOLM PATERSON v MOK GEK BOUY

No. VG 508 of 1994

CORAM:	BLACK CJ, LOCKHART and SHEPPARD JJ
PLACE :	Melbourne
-.	DATE	22 December 1994

IN THE FEDERAL COURT OF AUSTRALIA

)

VICTORIA DISTRICT REGISTRY

1	NO. VG508 of 1994

GENERAL DIVISION

BETWEEN:

LOCAL c

THE

MINISTER

FOR

IMMIGRATION,

MALCOLM PATERSON

Appellants

AND :

MOK GEK BOUY

Respondent

MINUTES OF ORDER

CORAM:	BLACK CJ, LOCKHART and SHEPPARD JJ
PLACE :	Melbourne
DATE :
-	22 December 1994

THE COURT ORDERS THAT:

1. The orders made by Keely J on 12 November 1993 be varied

by substituting for para. 2 thereof the follow~ng

order:

"2. ' The applicant's application for refugee status be referred to the respondent Minister to be dealt with according to law".

2. The appeal from the orders made by Keely J on 12 November

. ' -

1993 be otherwise dismissed.

1 .

,	.'.! p	3.
. .
;	.-.

-. .

- - .

, -a	, ; ,.- ;V! + , 11;'

' '

-3.

The appellant pay two-thirds of the respondent's costs of

; . I.:

.'.

4. The questlon of the costs of the proceedlngs before Keely J be stood over for later determination.

5. In relation to the determination of that question, directions be made as follows:

(a)	The solicltors for the appellant, on Or before

23 January 1995, lodge with the Associate to the

Chief Justice four copies of submissions on the question of the appropriate order to be made in relatlon to the costs of the proceedlngs before Keely J.

(b)	The solicitors for the respondent, on or before

6 February 1995, lodge with the Associate to the

Ch~ef Justice four copies of their submissions in reply.

(d)	The matter is to be relisted for judgment or, if the Court so determines, further argument on a date to be notified to the solicitors for the parties by the Associate to the Chief Justice.

Note:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT O F AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	) No. VG508 of 1994
GENERAL DIVISION	1

BETWEEN: THE MINISTER FOR IMMIGRATION. LOCAL

GOVERNMENT AND ETIlNIC AFFAIRS A S D

IMALCOLM PATERSON

Appellants

AND	MOK GEK BOUY

Respondent

REASOYS FOR JUDGMENT

BLACK U:

I have had the advantage of read~ng the reasons for judgment prepared by

Sheppard J and I agree that the appeal should be d~smlssed for the reasons he glves.

I would add some observat~ons of my own about the test to be applied to determine

whether there 1s apprehension of bias such that the person to whom the apprehension relates should not act as a dzclslon-maker in a particular matter. In my mew it may

be a matter of pract~cal

Importance whether the test for bias 1s expressed by reference

to "might" rather than by reference to "would".

In Lzvesey v. New Souflz lV(11es Bar Assocrarrotz (1983) 151 CLR 288 at 293-294 the

Hlgh Court sald:

"[The] prlnaple IS that r judge should not $11 to hear s wsc I € In 311 the clrcumstanccs the parues or the publ~c mlght entertsln s rcssonnhle apprchenston thrt he n q h t not

brlng an ~mpar t~s l

and unprrjudtced mlnd to the rcsolutton of thc questlon lnvolvcd in

11 .

Although stdternents of the prlnclple ~omrnonly

spcclk of 'susplclon of blab*, we

prefer to sbozd thc use of that phrasc bcuuse 11 sorncttmcs conbeys un~ntcndcd

nusnccs o i mcanlng "

It was contended by counsel for the appellant that the later decislon of the Hlgh

Court In Laws v. Ausrraliatz Broadcasting Cornrnissiotz (1990) 170 CLR 70 stands for a

narrower test in that the questlon to be asked 1s whether a reasonable observer would

- not mlght - conclude that the dec~slon-maker would - not might - "bring other than

an unprejudiced and lmpartlal mlnd to the solut~on of the issues". Rellance was placed upon the use of the word "would" In the jolnt judgments of Mason CJ and Brennan J at 87 and of Gaudron and McHugh JJ at 99-100 rather than, as in Live.tev,

the word "mlght".

I agree with Sheppard J, and ulth the pr~lnary

judge, that the members of the Hlgh

Court in Laws d ~ d

not intend to lay down any test different from that stated in

Livesey, a test whlch had much earlier orlglns: see The Queen v Wntsotz, Ex parte

Arntsrrotzg (1976) 136 CLR 248 at 258-263. The later cases confirm that thls 1s so. In

Re Pol~tes, Exparre Hoyrs Corporatiotz Py Lrd (1991) 173 CLR 78. a case decided only

a year after the decls~on in Laws, Brennan, Gaudron and McHugh JJ referred to and applled the passage from the judgment of the court In Lzvesfy set out earller m these reasons (see at 85, 89 and 91.) The Court observed that it must declde for ltself whether "grounds appear for reasonably apprehending that Mr Deputy President Polltes might not brlng an impart~al and unprejudiced m ~ n d to the resolution ot the

Issues before the Commlsslon" (at 89. my emphasis)

In Re Fit~utzce

Secror Utliotz of A~tslralia: Ex parte Illarotz Ply Ltd (1992) 66 AUR 583,

where ~t was contended that there was an apprehension of blas on the part of a

Deputy President of the Austrahan Industrial Relations Commlsslon, the Court

(Deane, Toohey and Gaudron JJ) said (at 583):

"Thc ccntral principle ~nvolvcd

in the appl~catlons

IS %ell settled. It is that a judge or

person obliged to act jud~cially in the dlschargc of the functions of a p u b l ~ ~ tribunal should not sit to hear a mattcr if, in all the arcum$tanccs, a party or the publ~c might entertaln a rcasonablc apprehension that she or he m ~ g h t not bring an ~mpart~al nd unprejudiced mind to the resolutton of the questlon or questions in it (See, eg,

Lrvesey v New South Wales Bar Arsociano,t . . at 293-294, Re Pohtes Ex pane Hoyls

Corporarion Ph/ Ltd

. at 85 )"

Similarly, m Re filedin, Erztertai~zment & Arts Alliurzce arzd Theatre fifnlzngers'

Assoc~ntiorz; Ex parte E-Ioyrs Corpornzior~ Pty Ltd (1994) 68 ALJR 179 the Court

(Mason CJ. Brennan, Deane, Dawson and Gaudron JJ) s a d (at 182) that In the case

of the rule agalnst bias the question was whether "in the c~rcumstances, the parties or the public mlght entertaln a reasonable apprehenslon that information or knowledge

wh~ch

has been independently acqulred will influence the decision."

The principles relating to apprehension of b ~ a s were agaln discussed by the High

Court In Wehh v The Qrreer~ (1994) 68 A U R 582, a case involving the conduct of a

juror in a murder trial.

One of the lssues was whether the trial judge was correct in

applying the test of whether there was "a real danger that the posltion of the accused had been or rn~ght have been prejudiced" by the conduct of the juror. All the members of the Court considered that the "real danger" test, supported by Enghsh authority, was not the correct test In Austral~a. M:~SOII CJ and McHugh J said ot the "real danger" test (at 583).

"However, we arc of thc oplnton that t h ~ s

was too stringent a test

In our opmlon, the

test that h ~ s

Honour should havc appllcd Ras whether, desprtc the wsrnlng that he

proposed to glve to the jury, the c~rcumstances

of the incldent would s t~ l l

glvc 3 far-

mlnded and lnformed observer a rcasonable apprchens~on	of a lack of lmpartlality on
the part of thc juror

When ~t 1s allegcd that a judgc has bccn or m~ght

be actuatcd by blas, t h ~ s

Court has

held that the proper test a whcther fan-mtndcd people m~ght reasonably apprehend or suspect that the judge has prejudged or m~ght prejudge the casc [R v Conlntonwenlth Concrlratlon and Arbrtrnnon Cornmlsslon: Er pane Anglmss Gror~p

(1969) 122 CLR 546 at 553-554, R v U'arson, Erpartc Arn~strong (1976) 136 CLR 248

at 261-262, 264, 267, Rr Judge Lrckre, Erpane Feltnan (1977) 52 ALJR l55 at 158: Re Shaw, Er pnrte Shaw (1980) 55 AJJR 12 at 11, 16, Llr , e~~y v New South Wales Bar

Assoc~arron (1983) 151 CLR 288 at 293-394, 300, Re JRL; Ex pane CLJ

(1986) 161

CLR 342 at 3-19, 351, 359, 368, 371, T;nlmuta v Kellv

(1989) 167 CLR 568 at 575, 581,

Gra~sby

v The Quem (1989) 168 CLR 1 at 201 The Court has appllcd the same tcst

to d Commlss~oner of the Australlan Industrial Relat~ons Commlsslon [Rr ~l.ledld.

Entertalnrnenr and Ans All~ance. Er pane Hoyts Corpornnot~ Pty Lrd (1994) 68 AIJR

179 at 1821 and to a member of the Australlan Broadcast~ng Tnbundl law^ v

Ausnalmnn Broadcnstmng Tribunal (1990) 170 CLR 70 at 87, 92, 1021 The Court has spec~fiwlly rcjected the real l~kel~hood of blas rest [TVat~on (1976) 136 CLR, at 261-

2621 The prlnclplc behlnd the rcasonablc apprchens~on or husplclon test 1s that it 1s

of "fundamental lrnportdnce that justice should not only be done, hut should man~fcstly and undoubtedly be sccn to be donc" [R r2 Sr~wer Jusnces, Ex pane

McCnrthy [l9241 1 KB 256 at 259, per Lord Hewsrt U, Re JRL. EL prrrre U L (19%) 161 CLR, at 351-3523 Although Lhe role of the juror 1s not thc same as that of the

judge, a commlsaonrr or a membcr of a quasl-judlclal tr~bunsl, we do not thlnk that the d~fference between the role of the juror and the role of those persons warrants any

d~frerel~t

test for alleged blas "

Although the focus in

W b b was on the questlon whether the "real danger" tebt rather

than the "reasonable dpprehension" test was the approprl~lte

one, thelr I-Ionours reter

to all the recent cases on the subject in the H~gh Court. lncludlng Lriws, as showlng that the proper test IS whether far-minded people miglzr reasonably apprehend or suspect that the judge has piejudged or 1nrg111 prej~ludge the case. A simll,~r approach was taken by Deanr J (at 595). who dlssentrd in the rc\ult, and by Toohey J (at 605).

Moreover, in conclud~ng that the trial judge should have found that the conduct of the

juror dld glve rlse to a rea5onnble apprehension of lack of ~mpart~al~ty.

Mamn CJ and

McHugh J considered what a far-minded person rnzgllt falrly have apprehended (see

at 587).

Thus, although Mason CJ and McHugh J used "would" m the passage from then joint judgment m Webb set out earller, it seems clear that thelr Honours dld not regard thls

as lnconslstent with the test m Liverq, lnvolvlng a cons~deratlon of what fair-minded people mlght reasonably apprehend or suspect ~nlght be the judge's state of mmd. So

viewed, reasonable apprehension of bias, as an objective matter, 1s a reasonably broad

concept and one that 1s aptly apphed by the use of the test stated in Llvesey.

Finally, it may be noted that in none of the other cases concerning the test for blas

declded by the Hlgh Court slnce Laws doeh there appear to be any suggestion that

the dec~slon in that case changed the law as it had then been developed. To the contrary, the formulation in Lzvesey has, consistently. been referred to wlth evldent approval.

I agree wlth the orders proposed by Sheppard J.

I certlfy that thlb and the preceding 4 pages are a true copy of the Reasons for Judgment hereln of the Honourable Chlet Justlce Black.

Assoclate: W

Date: a.

1 2 .

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY )

No. VG508 of 1 9 9 3

)

GENERAL DIVISION

)

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE MINISTER FOR IMMIGRATION. LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND MALCOLM PATERSON

Applicant

AND :

MOK GEK BOUY

Respondent

COURT:	BLACK CJ, LOCKHART and SHEPPARD JJ.
DATE :	22 DECEMBER 1 9 9 4

PLACE: MELBOURNE

REASONS FOR JUDGMENT

LOCKHART J.

I have had the advantage of reading the reasons for ludgment of Sheppard J. I agree with his Honour's reasons and the orders which he proposes. I have also had the advantage of readlng the additional observations of the Chief Justice wlth which I agree.

I certify that this page is a

true copy of the reasons for judgment herein of the Honourable Justlce Lockhart.

Associate L < &

/'<FLL-

Dated:

22 December 1 9 9 4

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG508 of 1993
)
GENERAL DIVISION	1

On ADD^^ from a Judae of the Federal Court of Australia

BETWEEN:

THE MINISTER FOR IMMIGRATION. LOCm

GOVERNMENT AND ETHNIC AFFAIRS AND

MALCOLM PATERSON

MOK GEK BOUY

m:	BLACK CJ, LOCKHART and SHEPPARD JJ.
PLACE :	Melbourne
DATE :
-	22 December 1994

REASONS FOR JUDGMENT

SHEPPARD J.: This is an appeal from a judgment of a Judge of this Court (Keely J) in which the decision of the delegate of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") made on 3 November 1992 was set aside. His Honour's judgment is reported in (1993) 47 FCR 1. It was ordered that the application made by the respondent (Ms. Mok) for refugee status be referred to the Minister to be determined according to law by him or by a delegate other than

Mr. Paterson. Mr. Paterson is the second appellant and was

the delegate of the Minister who made the decislon which was

set aside. His Honour dealt with the question of costs in a

later judgment reported in (1993) 47 FCR 81.

Refuaee Status

The statutory framework which is in question is to be found in amendments made to the Miaration Act 1958 by the Miaration Amendment Act 1992. I shall refer to the Miaration

A d , amended in accordance with the 1992 amending Act, as "the

Act". The central provision is s.22AA which is in Division 1A of Part 2. The Division is entitled "Refugees". Section 22AA provides that, if the Minister is satisfied that a person is a refugee, the Minister may determine in writlng that the person is a refugee. Section 22AB provides for the procedure for the determination of refugee status. This is to be prescribed by regulations. Section 22AD provides for the consideration of applications for refugee status. It is unnecessary to refer to the detail of the provisions of that section

The word "refugee" is defined in s .4. The word has the same meanlng as it has in Article 1 of the Refugees Convention or in that Article as amended by the Refugees Protocol. I shall refer to the Convention and the Protocol hereafter as "the Convention" and "the Protocol".

Australia acceded to the Convention in 1954 and to the Protocol in 1976. Artlcle 1 of the Convention defines the term "refugee". Relevantly it applies to any person who, as a result of events occurring before 1 January 1951 and "owing

to well-founded fear of being persecuted for reasons of race, religion, nationallty, membership of a particular social group or political op~nion, is outside the country of his nationallty and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". The Protocol modifled the definition by removing the reference to events occurring before 1 January 1951. Since the Protocol entered into force, the provisions of the Convention have been unqualified as to tlme.

Ms. Mok claims to have a well founded fear of being persecuted for reasons of race, religion and nationality. That was the basis of her application for refugee status under the Act. At this point, it should be noted that, for convenience, I have referred to "a well-founded fear of being persecuted" as "a well-founded fear of persecution".

Backsround

Ms. Mok was one of a number of people, known as "Boat People", who arrived in Australia in a vessel which became known in the Department of Immigration, Local Government and Ethnic Affairs ("the Department") as "The Beagle". She was in the same vessel as Dr. Lek who made a similar application; see the judgment of Wllcox J In Lek & Ors v Minlster for Immiaratlon. Local Government and Ethnic Affairs (1993) 43 FCR 100. Reference may also be made to his Honour's later judgment in the matter ((1993) 45 FCR 418). Both judgments were originally under appeal. The second judgment,

however, concerned only Dr. Lek. His appeal has been discontinued as have the appeals brought by numbers of other unsuccessful applicants before Wilcox J. Only one appeal remains on foot and that in a case where the appellant has been returned to Cambodia.

A description of the circumstances in which Dr. Lek and others left Cambodia and of their journey to Australia is found in Wilcox J's judgment. There is no issue about the description. What his Honour said applies equally to the circumstances in which Ms. Mok arrlved here.

The Beagle arrived in Australian waters on or about 30 March 1990. Until recently Ms. Mok has been in custody, firstly in Western Australia, then in Melbourne and later at the Vlllawood Detention Centre in Sydney. She made application for refugee status. Her application was dealt with provisionally within the Department, then by the Refugee Status Review Cornnuttee ("the Committee") and eventually by

Mr. Paterson.

The Grounds of Appeal

His Honour set aside the declsion in question on a number of grounds. In summary, these were:

(a)	There was a reasonable apprehension that the declsion- maker was biased.

(b)

The decision-maker acted upon a report from the Department of Foreign Affairs and Trade dated June 1992 without seeklng information bringing the report up-to- date.

(c)

The decision-maker misunderstood the meaning of the term 'well-founded fear of persecution".

(d)

The decision-maker denied Ms. Mok natural justice by failing to provide her with a copy of a report known as

the "Fordham Report

" .

(e)

The decision-maker erred in law in failing to consider first of all whether Ms. Mok's fear was well-founded in March/May 1990, that being the time she arrived in Australia and then whether changes in the relevant circumstances were such that her subjective fear of persecution was not well-founded at the time at which the decision was made.

(f)

The decision-maker was influenced, in making his decision, by the attributes and experience of members of the Refugee Status Review Committee and was guided by the opinion of those members.

The grounds of appeal challenge each of these

conclusions. Additionally, counsel for the appellant

submitted that, should this Court be of opinion that hls

Honour's conclusion concerning bias was correct, his Honour should, nevertheless, have dismissed the application on the basis of waiver or necessity or in the exercise of his discretion pursuant to s.16 of the Administrative Decisions /Judicial Review) Act 1977.

The only other matter to be mentioned at thls point in relation to the grounds of appeal is that there was raised in the submissions of the parties questions concerning the application and effect of the decision of the High Court in Chan Yee Kin v The Minister for Immiaratlon and Ethnic Affalrs (1989) 169 CLR 379. The matters raised in those submissions make it necessary to refer in some detail to Mr. Paterson's reasons for his decision to refuse refugee status. The detail of the reasons is also of relevance in relation to the question of bias.

The Deleqate's Decision and the Reasons Therefor

The decision was dated 3 November 1992. Reasons for the decision were provlded on 12 November 1992. The statement of reasons commences with a paragraph in whlch it is said that

Mr. Paterson is setting out his findings on material questions

of fact, referring to the evidence or other material on which those flndings were based and givmg reasons for his decision that Ms. Mok dld not have the status of refugee within the meaning of the Convention or the Protocol. . Paterson's reasons then set out some background matters which included Ms. Mok's personal history, the details of her arrival, the

fact that she had been in custody since 2 April 1990 and the fact that an application for refugee status had been recelved by the Department on 8 May 1990. Ms. Mok was interviewed on 28 May 1990. On 26 February 1992 a decision was made that she was not a refugee.- An application for a revlew of the decision was received by the Department on 24 March 1992. The matter was considered by the Refugee Status Revlew Committee ("the Committee") on 29 July 1992. Their assessment was that she was not a refugee. A copy of the Committee's assessment was sent to Ms. Mok for comment. Her comments were received on 24 September 1992.

M r . Paterson's reasons occupy 14 closely typed pages.

is important to refer to the detail of them. The account which follows includes, I believe, the significant matters dealt wlth ln them; but it should be understood that reference has not been made to everything and that the account of them which follows is not in all respects comprehensive or exhaustive..

The reasons summarise Ms. Mok's clalms and submissions. In passlng it should be noted that at all tlmes Ms. Mok has been represented by a body known as the Refugee Advice & Casework Service (Vic.) Inc., the solicitor for whom is Ms. Lester. That body is referred to in the evidence as RACS.

Ms. Mok claimed to have suffered hardship durlng the Pol

Pot reglme. The hardship consisted of a denial of the right

to practise her religion, the separation of family members, a requirement to perform hard labour while receiving insufficient food and the death of her father due to exhaustion resulting from hard labour as well as some other matters. Ms. Mok was accused of being a CIA informer when soldiers discovered her escaping her mobile labour unit to visit her parents. The punishment for this was that she was sent to an isolated farm where she was required to work alone for six months.

The reasons said that Ms. Mok claimed that there was still fighting in Cambodia and that she feared a return of Pol Pot to power. Ms. Mok's fears were said not to be allayed by recent developments in Cambodia because there was still a strong Khmer Rouge presence there.

Ms. Mok claimed that, immediately after the Vietnamese takeover of Cambodia, she and her family were faced with a food shortage. They stayed for a short time in a camp on the Thai-Cambodian border before being forced back into Cambodia at gun point along with thousands of other refugees. In 1980 they went to live in Phnom Penh. They found that most of their relat~ves had died. Ms. Mok took up sewlng to earn a living.

In 1985 Ms. Mok's famlly were said to have been classifled "351". This denoted their Chinese ethnicity. Their belongings were confiscated by armed soldiers. It was

claimed that Ms. Mok and her family were subjected to discrimination which affected her education, her job prospects, and her ablllty openly to practise her religion and cultural "practices". It was also claimed that Ms. Mok and her family were discriminated against by the general population. Ms. Mok and her family continued to practlse their religion Ln the secrecy of their home. It was claimed that on one occasion the police raided the home whlle they were praying, destroyed their shrine and threatened them with imprisonment and flogging if they were caught again. The police paid further visits to the house.

Ms. Mok claimed that, because of her illegal departure, she would be considered as a person who had betrayed her country. She feared imprisonment on return to Cambodia. She believed that punishment for attempted illegal departure was imprisonment.

Ms. Mok cla~med that, although the return of the Khmer Rouge did not mean a return by the Khmer Rouge to complete and absolute power, it did mean a situation where it was able to contlnue the clvll war in Carnbodla through violence and

persecution.

Mr. Paterson said that Ms. Mok's fear in t h ~ s

regard was supported by object~ve

evidence in relation to *#the

destructive force" of the Khmer Rouge. As an equal partner in the four member Supreme National Counc~l, the Khmer Rouge would secure its own posltion within Phnom Penh, remain armed and contlnue to receive endorsement by the Chinese leadership.

Ms. Mok claimed that, in view of the volatile situation in Cambodia, persons returning to Cambodia ("returnees" In the decision) were not safe from future persecution. They would only remain unharmed while the international spotlight was focussed on Cambodlal When the number of returnees increased, it would not be easy to monitor their safety.

Mr. Paterson referred to a number of other matters relied upon by Ms. Mok and then proceeded to his assessment of the matter. He referred flrst to the Convention and the Protocol.

He said that he accepted that Ms. Mok did not wish to avail

herself of the protection of Cambodia but he had to assess whether this was because "the applicant has, in relation to a Convention reason, a well-founded fear of Dersecutlon." The emphasis is that of Mr. Paterson.

Mr. Paterson then made an assessment of Ms. Mok's claims

and submiss~ons "against" the Convention definition. He said that he took "each Convention reason" in turn. He first considered Ms. Mok's clalms relat~ng to d~scrimination

suffered as a result of Chinese ethnicity. He referred to a report, known as the Shoesmith Report of 17 February 1992, of the effect of 351 ethnic Chinese classification. The report is a report obtalned by Ms. Mok's advisers from Dr Dennis Shoesmith, a senlor lecturer ln politics at the Northern Territory University.

Mr. Paterson said that he had given greater weight to

more recent evidence in a report dated 22 June 1992 from the Department of Forelgn Affairs and Trade, referred to throughout the judgment and the evidence as "DFAT". The Report, to which I shall also refer in due course, was said by

m. Paterson to advlse that, although dlscrlminatlon against

the Chinese did exist in the earlier orders of Ordinance 351, there was evidence that it was no longer being enforced and also that there was tolerance of Chinese cultural activities within the community. Mr. Paterson said that he "gave the DFAT material greater weight than the Shoesmith Report as it is more recent and collected by impartial and professional officers in Cambodia."

Mr. Paterson then turned to Ms. Mok's claims in relation

to dlscrimination in employment and education. He accepted that in 1980 she had established herself as a self-employed seamstress. He said that, even after her classification as 351 in 1985, she was able to attend a course in dress making in 1987 and to contlnue wlth her busmess until she left for Australia in 1990. Mr. Paterson thought that the schooling denied Ms. Mok was not particularly related to her Chlnese ethnicity. It was consistent with the coming to power of the Khmer Rouge "and the cessation of education for a great many Cambodlans." By the time the Khmer Rouge was removed from power, Ms. Mok was past normal school age and, like many Cambodians, was not able to complete her education. Mr. Paterson said that, even if the limitations on MS. ~ok's

education were based on her ethnicity, he "found" that thls

adverse treatment was insufficient to amount to persecution because it did not result in her being denied the right to employment.

Mr. Paterson considered Dr. Shoesmith's statement that Chinese Cambodians living outside the capital still faced particular risks from the Khmer Rouge as irrelevant to Ms. Mok's claims. This was because she would be able to return to Phnom Penh where the Khmer Rouge, although present, were not active.

Mr. Paterson then dealt wlth Ms. Mok's fears based on speculation that Hun Sen would come to power after: the election and that he would adopt discriminatory policies towards Chinese Cambodians. Reference was made to a comment he was reported to have made in Sydney the previous year.

Mr. Paterson did not give weight to this claim or Hun Sen's

comment, as both were based on speculation that he would come to power after the election and that, if he did, that he intended to adopt discriminatory policies towards Chinese Cambodians. He referred to evidence that the Hun Sen Government had taken steps to liberalise policies in relation to Chinese Cambodians and instanced religlon (with which he dealt more comprehensively later in his reasons) as an example. In this respect Mr. Paterson said that advice from both the Department of Foreign Affairs and Dr. Shoesmith was that steps had been taken to ease long-standing restrictions on the practlse of religion. This included the fact that

Chinese temples and the freedom to practise "Chinese Buddhist activities" were in evidence. These were "apparently" not being stopped by the authorities.

Mr. Paterson sald that he dld not think that Ms. Mok's fear in relation to her ability to practise her religion if she returned to Cambodia was "objectively well-founded." He also considered her claim that she would suffer discrimination by the general population because of her race, but said that she had not provlded details in relation to it and he was thus not able to assess whether or not it amounted to persecution.

Mr. Paterson then turned to a suggested restriction on Ms. Mok's rlght to express political opinions. He referred to experiences recounted by her during the Pol Pot period and to her fear of the return of the Khmer Rouge. He said that these fears were based on incidents that occurred several years ago. He accepted that the Khmer Rouge currently had a presence in Phnom Penh but "assessed" that that presence was not an active one such as to give rise to "Convention concerns." He said there was no evidence to support the proposition that the Khmer Rouge had persecuted anyone in Phnom Penh or that they would persecute Ms. Mok there. He also said that, on 19 June 1992, the Department had advised that the United Nations representative in Thailand had made it clear to Austral~an

officials that nobody would be repatriated to areas where the Khmer Rouge was active. He emphasised that, when Ms. Mok returned to Cambodia, she would be sent to an area where there

was no Khmer Rouge activity. On that basis, her fear of

persecution by the Khmer Rouge was not well-founded.

m. Paterson next dealt with Ms. Mok's treatment by the Vietnamese authorities after the Pol Pot period. He said that the difficulties wh~ch Ms. Mok and her family had experienced after the Vietnamese take over in 1968 were similar to the experience of thousands of others. But the situation had not continued. T h ~ s was evidenced from Ms. Mok's submission which disclosed that her family had been engaged in trade in Phnom Penh since 1980, that she was self-employed as a dressmaker and that there was no later mention of difficulties with the Vietnamese authorities.

The final matter dealt with by Mr. Paterson concerned the consequences of Ms. Mok's illegal departure and the question of her safety if she were to return to Cambodia. m. Paterson said that he accepted the possibility that the Cambodian authorities might view an illegal departure as an expression of political opinion and that there probably were instances of persons being prosecuted and possibly persecuted for illegal

departure prior to the Paris Peace Agreement.

It may be s a ~ d

here that the Paris Peace Agreement, to which Cambodia and Australia were parties, was intended to bring about a peaceful settlement of Cambodia's internal problems. It involved each of the dissident groups in Cambodia including the Khmer Rouge. The Agreement is said to have led to a more humane treatment of minority groups in Cambodia.

Mr. Paterson sald that the only recent evidence relatrng to the treatment of returnees that he had before him dealt with voluntary returnees including those from ~ustralia who had earlier left Cambodia illegally. He said that these people were being monitored by the Australian authorities in Cambodia and there was no evidence that they had suffered any persecution or discrimination since their return. He said that it was a principle of the repatriation provisions of "the comprehensive settlement" that nobody would be forced to return to areas which were judged unsafe or unstable. Mr. Paterson reiterated that, by returning to Phnom Penh, which was Ms. Mok's former area of residence, she would not be returning to an unsafe or unstable area. Mr. Paterson found that Ms. Mok's fear of persecution upon return was not well-

founded

Mr. Paterson concluded by saying that Ms. Mok's claims regarding race, religion and political opinion had been considered cumulatively. He "assessed" that the discrimination and harassment suffered by Ms. Mok did not constitute persecution in Convention terms. Accordingly, he determined that she was not a refugee. He noted that, in making his assessment, he had before him the Departmental file, the DFAT Report of 22 June 1992, United States State Department Country Reports on Human Rights Practices (1991), a report described as "Misslon Report Voluntary Repatriation Port Hedland" known as the Fordham Report, other submissions lodged on Hs. Mok's behalf and two further departmental files

containing submissions made on her behalf. Mr. Paterson does not specifically mention Dr. Shoesmith's Report but it is clear that he referred to it. No doubt it was not mentioned specifically, because it was included in his account of Ms. Mok's submissions.

The Bias Point

I now come to the various matters relied upon by counsel for the appellants. I deal frrst with the bias point. Before the primary Judge Ms. Mok had submitted that Mr. Paterson was actually biased against her. That submission was rejected at first instance. His Honour's conclusion In that respect was not the subject of any challenge before us.

The basis for the bias point emerges from his Honour's judgment. His Honour said that, before him, counsel for Ms. Mok had submitted that there existed a firm view, assumption or opinion by senior members of Government, including the then Prime Minister, that the Cambodian boat people as a class were not refugees w~thin the meaning of the Act. His Honour said that the submission was "partly based" on what Mr. Hawke had sald on 6 June 1990 when rnterviewed on television by Ms. Jana Wendt. Part only of the text of the interview is in evidence. It is contained in a cablegram from the Department in Canberra to the Australian Embassy in Bangkok. The cablegram said that "the following op~nions" were prepared for use in answering any press inquiries about boat people from Cambodia and from "Australian contacts with the Phnom Penh authorities on this."

The memorandum emphasised that the Phnom Penh authorities had said that they would only receive back people who returned "voluntarily" and that such people would not face persecution on their return. A Committee known as the Determination Of Refugee Status Corninittee (referred to in the judgment as "DORS") had yet to determine whether the boat people from Cambodia who had arrived in Australia were refugees.

There then followed what was described as the text of the Prime Minister's comments on the Cambodian boat people in the television interview with Ms. Wendt. But, as mentioned, it was only part of the interview. The evidence does not disclose what other matters, whether relating to this matter or otherwise, were dealt with in it. The text in evidence is

"Wendt: We woke up this morning to read that we're asking the Cambodian Government to take back some of the Cambodian boat people who came to our shores. Why are we doing that?

PM: For the obvious reason. I mean, we have - - - a compassionate humanitarian policy which will stand comparison with any other country in the world. But we're not here with an open door policy saying anyone who wants to come to Australia can come. These people are not ~olitical refuaees (emphasis

added)

Wendt: How can you be sure of that, Mr. Hawke?

PM: Simply there is not a regime now in Cambodia which is exercising terror, political terror, upon its population.

Wendt: What do you make then of these hundreds of people -

PM: What we make -

Wendt : - Who get on their tin boats and travel across - - -

PM: What we make of it is that there is obviouslv a combination of economlc refuaeeism, if you like.

Peo~le savina thev don't like a particular reglme or

they don't like their economic circumsiances, therefore they're going to up, pull up stumps, get in a boat and Iob in Australia. Well that's not on (emphasis added).

Wendt: And risk their lives to do it?

PM: Their lives is not, I mean, we have an orderly migration program. We're not golng to allow people just to jump that queue by saying we'll jump into a boat, here we are, bugger the people who've been around the world. We have a ratlo of more than 10 to 1 of people who want to come to thls country compared to the numbers that we take in.

Wendt: And you personally have no qualms about that?

PM: Not only no qualms about it, but I will

forceful in ensurinq that that is what's followed

(emphasis added).

Ends.

The words which are emphasised were emphasised in the orlglnal document. Copies of the cablegram were sent to a number of persons and places, including the Minister for Forelgn Affairs and Trade, Senator Evans.

The Minister for Immigration at the time was .

Hand.

He was called as a wltness by Ms. Mok, as was a Departmental Officer, 1Mr. Simington. Mr. Paterson gave evidence, but was called in the Minister's case. It is to be observed that the interval between the interview on 6 June 1990 and Mr.

Paterson's decision on 3 November 1992 was an lnterval of almost two and a half years. That is a matter which was

emphasised in the evidence of the three witnesses and in the

submissions made to us by counsel for the Minister.

The Evidence of the Minister and the De~artmental	Officers and
his Honour's Treatment and Criticism of it

It is next appropriate to refer to the evidence given by

M r . Hand, Mr. Simington and Mr. Paterson.

That is best done

by referring to his Honour's analysis of that evidence. There was no submission made to the Court, at least with any degree of enthusiasm, which suggested that his Honour's findlngs should be disturbed except in relat~on to the question whether statements similar to those made by Mr. Hawke were made by Senator Evans , the Minister for Foreign Af f airs and Trade. There was no direct evidence that Senator Evans had made any such statements. I do not think that his Honour was justified in inferring that such statements were made by him. That conclusion is not, however, sign~ficant for the outcome of the appeal. It should be mentioned, however, that some of the passages to be referred to from his Honour's judgment proceed on the assumption that Senator Evans had made statements such as those made by Mr. Hawke. These passages should be read subject to the qualification that I respectfully consider his Honour's finding ln relation to Senator Evans to have been erroneous.

The purport of Mr. Hand's evidence was that he disagreed

very strongly with what the Prime Minister had said. He

described it as "ill advlsed, improper and, for someone that

ought to have known better, stupid." His evidence established that he spoke to Mr. Hawke about what he had said during the interview and convinced him and also Senator Evans that the statements should not have been made. Mr. Hand himself, according to his evidence, which his Honour appears to have accepted, thereupon took some steps to correct the misapprehension and misunderstanding which he considered Mr. Hawke's statements to have brought about. His Honour's criticism of Mr. Hand was not that these steps were not taken. Rather, he thought that the steps taken were "totally inadequate." Amongst other things, his Honour said that, as

Mr. Hawke had not withdrawn his television statements, and

neither he nor Senator Evans had publicly admitted that they were wrong, Mr. Hand was under a duty to ensure that the persons to whom he, as the Minister, had delegated his powers under the Act, to decide whether the Cambodian nationals were refugees, were told:-

(i) that both Mr. Hawke and Senator Evans were wrong;

(ii) that they had admitted they were wrong; and

(iii) that their statements must be disregarded by delegates when considering applications by Cambodians for refugee status.

Further findings made by his Honour were as follows:-

"On the evidence, including NI. Hand's evidence as to his 'more colourful language', I find that Mr. Hand, on a large number of occasions, told people

that the Department 'had a fair and proper process'. However, he failed to tell hls delegates (and failed to have them told) that Mr. Hawke's statements were wrong and must be disregarded. On his evidence, he seemed to think that it was sufficient for him to express his views that the Cambodians should be given a fair hearing; he considered that those views were an implied contradiction of Mr. Hawke's statements. However, in my opinion, that left the delegates, at best, in the position of having statements, that had been made by both the Prime Minister and by Senator Evans , impliedly contradicted by the respondent Minister. I have said 'at bestf but, in my vlew, Mr. Hand's statement as to a fair hearing did not impliedly contradict what Mr. Hawke had said.

Mr. Hand's attempt to overcome the danger created by

Mr. Hawke's statements was totally inadequate. I have formed that opinion having regard to (1) the words used by Mr. Hawke, (2) the real danger that they would influence delegates into wrongly rejecting the claims of Cambodian applicants for refugee status, together with-the facts that (3) Mr.

Hawke spoke with all the authority and influence of the office of Prime Min~ster (4) Mr. Hawke had not only said what his opinion was but had added that he would 'be forceful in ensuring that [his opinion] is what's followed' (5) his statements were made on national television (6) they were the subject of a large headline in a national newspaper the next day and (7) there had been a statement by Senator Evans, on the subject of the Cambodian 'boat people', which also was wrong. In my opinion, the circumstances requ~red the respondent Minister to inform his delegates, as soon as possible after 6 June 1990, preferably in writing, that Mr. Hawke's statements to Ms. Wendt were wrong and must be d~sregarded and to take similar actlon in relation to Senator Evans' statement. Senator Evans' role in relation to Cambodia was such that there was a real danger that his statement would influence delegates lnto wrongly rejecting Cambodian claimants for refugee status - see importance placed by Mr. Paterson on the June 1992 DFAT report produced by Senator Evans' department."

His Honour also sald that he accepted that Mr. Hand

believed that no-one in the Department would have been unaware

of his vlews "on the unfortunate statements" of the Prime

Minister and Senator Evans. His Honour also said that, on all the evidence, he rejected oral criticism of what the Prime Minister had said by . Hand or by "senior ranks" of the Department. His Honour found that no such criticism was expressed to the Minister's delegates upon whom was conferred power to make decisions under the Act. There were statements made by Mr. Hand that delegates should give a fair hearing to "the Cambodian applicants." His Honour was of opinion that the situat~on created by the statements of Mr. Hawke and Senator Evans requlred far more positlve action. He thought that a specific, unequivocal retraction of their statements was necessary and that the delegates should have been told that fairness required that those statements be disregarded by them.

His Honour also said:-

"On all the evidence, I find that there was not at any time any oral or written statement, by Mr. Hand or by his senior officers, to the delegates, including Mr. Paterson, (a) which specifically contradicted Mr. Hawke's statements on television and Senator Evans' statement or (b) which stated that those statements were wrong or (c) which stated that the delegates, in considering each Cambodian case, must, as a matter of fairness, disregard those statements. I reject as incorrect any evldence which suggests the contrary."

A paragraph of some significance in his Honour's judgment is the fol1owlng:-

"Mr. Paterson dld not consider Ms. Mok's case until late October 1992 almost two and one-half years

after Mr. Hawkers statement; at that earlier time he was not a delegate deciding whether Cambod~ans were refugees. The respondents' counsel submitted that 'two and a half years is a pretty long tune and one would have thought that to have paraded the comments again and then expressly directed delegates to ignore them would have the very reverse effect. ' I was impressed by that submission at the time when lt was made but, 03 reflecting on it, have come to the conclusion that there was a much greater danger in failing to tell him, specifically and unequivocally, that Mr. Hawke's statements were wrong and must, as a matter of fairness, be disregarded; in that connexion it may be added that Mr. Paterson in 1990 (when he was not a delegate) never saw 'any documentation to suggest that the Prime Minlster had got it wrong'."

The submission to which his Honour refers in that

paragraph was made to us on appeal. To my mind, it is at the

heart of the case.

I shall return to it in due course

I do not refer to the detail of Mr. Simington's evidence. His Honour analysed his evidence in great detail. I have not dealt wlth it because his Honour formed an adverse view of Mr. Simington's evidence. Plainly he dld not accept it. No submission challenging his Honour's conclus~on in this respect was made to us.

I turn next to Mr. Paterson's evidence. Much of his Honour's treatment of LW.

Paterson's evidence concerned the

question whether he should conclude that . Paterson was actually b~ased. As mentioned, his Honour concluded that

Mr. Paterson did not have actual bias. HIS Honour thought

that he should be disqualified for apprehended b~as. A question whether a decision-maker should be disqualified from

dealing with a matter, or whether a decision made by a decision-maker should be set aslde, because of apprehended bias involves objective rather than subjective considerations. This is something of which I shall say more when I come to deal with a number of the authorities on the question. But the fact that that is so makes much of his Honour's treatment of Mr. Paterson's evidence irrelevant for the purposes of dealing with this appeal. It should be mentioned, however, that his Honour referred to evidence given by Mr. Paterson to the effect that Mr. Hawke's statement that the Cambodians were "economic refugees" had no effect on him whatsoever. He said that it was of no concern to him and that he had no reaction to it. His Honour said that he was not prepared to accept that Mr. Hawke's statement had no influence or effect whatsoever on Mr. Paterson's decision-making. He added that Mr. Paterson's evidence that Mr. Hawke's statement had had no effect on him and certain other statements along the same lines were "surprising". His Honour continued:

"One would have thought that, as a lawyer, he would have had a reactlon to Hawke's prejudging of claims that were to be determined by officers of the Department of which Mr Paterson was an officer; further, that he would have had a very sharp reaction to Mr Hawke's statement that he would "be forceful in ensuring that that is what's followed". No lawyer should listen with equanimity to a public statement by the Prime Mlnister, speaking of hls proposed intimidation of delegates who were making important decisions under the Migration Act."

In concluding his treatment of the questlon whether there

was actual bias, his Honour said that he accepted the

submissions by the respondents' counsel that there was no evldence of actual bias on the part of Mr. Paterson. He added, "However, I have found that he was influenced by Mr. Hawke's statements and that, coupled wlth his lack of any reaction to those statements, suggests that he was unconsciously biased by Mr. Hawkers statements." I have some difficulty with this passage. In my opinion a decision-maker may be consciously biased; he may also be subconsciously

biased.

In elther case, however, he will be actually biased.

I do not think that the matter is of any moment for the outcome of the appeal. Plainly hls Honour put actual bias aside. The question whether, in a given set of circumstances, there will be apprehended bias is well settled by authority. The task is to apply the authorities to the circumstances of the case in hand. That is how his Honour approached the question. The question we have to decide is whether his Honour reached a correct conclusion after undertaking that exercise.

The Primarv Judae's Treatment of the Bias Ouestion

Before hls Honour and before us counsel for Ms. Mok submitted that the evidence justified the drawing of an inference that, at all relevant times from early 1990 until after the decision, there existed an assumption or opinion by senior members of the Government, lnclud~ng the Prime Minlster and senior off~cers of the Department, that the Cambodian boat people as a class were not refugees. It was also submitted

that that view was so widely disseminated that there existed a reasonable apprehension that decision-makers, including Mr. Paterson, and their "case officers", might be influenced by those assumptions and opinions. Further, on the evidence, there was a reasonable apprehension that the delegate might not have brought an impartial, unbiased, fair and independent mind to the resolution of the question to be decided.

His Honour reviewed a number of authorities and concluded that the question was whether it would be reasonable for the general public or one of the parties to suspect the decision- maker of not bringing an unprejudiced and impartial mind to the solut~on of the issues before him. In his discussion of the matter, his Honour from time to time made statements which show that he took into account the apprehension of Ms. Mok as distinct from that of the general public or an informed observer. Thus, at one point in his judgment, he said that, in his opinion, Ms. Mok's apprehension of bias was reasonable.

A little later he said that any apprehension of bias that Ms. Mok felt as a result of Mr. Hawkers statement may have been increased by the passage of the Micrration Amendment Act

1992 which came into force on 6 May 1992. There is a

question, later to be discussed, of the significance and

effect of statements in the authorities that, in determin~ng

whether there is apprehended bias, it is appropriate to have

regard to the reasonable apprehension of a party adversely

affected by the decision which is challenged. It will be seen

that the test is an object~ve one and not a subjective one,

notwithstanding that the matter is looked at from the

standpoint of the party.

His Honour's conclusion on this aspect of the case is summarised in the following passage:-

"In considering the question of whether it would be reasonable for the applicant to suspect Mr. Paterson of not bringing an unprejudiced and impartial mlnd to the consideration of her application, it may be useful to contemplate the hypothetical case of an Australian woman, kept in detention in a foreign country for three years whilst waiting for an administrative official to make a decision as to whether she was a refugee. Assume for the purpose of the case (1) that the Australian woman watched on television, and/or read in a newspaper the next day, that the Prime Minister of that country had expressed views that the Australians who had recently arrived there were not refugees and should not be allowed to stay; (2) that that Prime Minister had stated that he would be forceful in ensuring that his vlews were followed by the administrative officials who were deciding cases which included her case; (3) that the administrative decision-maker was on a salary level which could be broadly called 'middle-management'; and (4) that the view that those Australians were not refugees had also been publicly expressed by the Minister for Foreign Affairs and Trade. In my opinion such an Australian citizen would be likely to suspect - and it would not be unreasonable for her to suspect - that the administrative off~clal who was to decide her case would not bring an unprejudiced and impartLa1 mind to the making of his decision."

His Honour then referred to a submission dated 12 August

1992 made on behalf of Ms. Mok in which it was said that her

solicitors were concerned by allegations made by prominent persons including the Prune Minister that the boat people were economic refugees. Hls Honour continued:-

"That document shows that at a time after the meeting held by the RSRC, but before its recommendation, the applicant, through her solicltor, was expressing her apprehens~on of bias. In my opinion her apprehension of bias was reasonable. Less than two months later, but before the delegate's decision, she commenced a hunger strike which lasted for approximately two months and led to a Macquarie Street spec~al~st expressing the written opinion that she was 'determ~ned to d ~ e

rather than be repatriated'."

There followed the reference to the Misration Amendment Act 1992 to which I have referred. This part of the judgment then concluded with the following statement:-

"If there be any doubt as to the reality of her apprehension, it should be noted that the Department's Director of Immigration in Sydney

(Mr. K. Owen) later advised her solicitor that

Ms. Mok's condition 'was considered serious as there had been complications with Ms. Mok's drips' and she was 'taking small amounts of liquid not considered to be adequate even to sustain [her] present condition'; further, the respondents' counsel advised the court that his instructions were that she was 'not fit to be moved' . . . "

It is appropriate now to refer to the relevant authorlties. The authorlties in this area are numerous and I do not refer to them all. In the light of the reference to it in more recent authorities, it is appropriate to commence with a reference to Livesev v The New South Wales Bar Association (1983) 151 CLR 288. It is to be observed that Livesey was a case which concerned the questlon whether one of the parties or a far-minded observer might have entertained a reasonable apprehension of bias or pre-judgment on the part of two members of the New South Wales Court of Appeal. The case was one of apprehended blas, not actual bias. The Court (Mason,

Murphy, Brennan, Deane and Dawson JJ) said (at 294):-

"In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evldence should refra~n from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike d~fferent minds in different ways' (per Aickln J in Shaw (1980) 55 ALJR, at p.16 [Re Shaw; Ex parte Shaw (1980) 55 X J R 121). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a poss~ble appearance of pre- judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decislon of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the partles or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment."

The next authority to be referred to 1s Laws v Australian Broadcastins Tribunal (1990) 170 CLR 70. That was a case which concerned a hearing before the Australian Broadcasting Tribunal. It is thus set in the context of an exercise of power by an admlnistratlve tribunal bound to act ludicially; it is not a case In which there was an exercise of judicial

power. It was held that an objective bystander would reasonably apprehend that by participat~ng in the f~nding in questlon three members of the Tribunal pre-determined the question to be decided so that they were disqualified from participating. By -majority, the Court also held that the Tribunal's conduct of its defence of a defamation actlon would not lead a fair-minded observer to conclude that the Tribunal (apart from the three disqualified members) would bring other than an unprejudiced and impartial mind to the resolut~on of the issues that would arise before the Tribunal in the inquiry it had to conduct

In the course of their judgment Mason CJ and Brennan J said (at 87-88):-

". . . we do not consider that the inference drawn in

the preceding paragraph, taken in conjunction with the other circumstances which we have described, would lead a fair-minded observer to conclude that the members of the Tribunal, apart from those who participated in the decision of 24 November, would bring other than an unprejudiced and impartial mind to the resolution of the issues which would properly arise in an inquiry to be held under s.17C [of the Broadcastina Act 19421: see Livesey v New South Wales Bar Association. In assessing what the hypothetical reaction of a fair-mlnded observer would be, we must attribute to hlm or her knowledge of the actual circumstances of the case. In other words, the observer would take account of the circumstances which led to the brlnging of the defamation action and the filing of the defences. While it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of the members of the Tribunal to make an independent decision uninfluenced by previously expressed opinions and conflicting interests (see Vakauta v Kelly (1989) 167 CLR 568), such an observer must be taken to appreciate that the defences filed by the Tribunal

do not amount to assertions of belief or admissions. Consequently, there is no sufficient reason for an observer to conclude that the defences amount to a prejudgment of the issues to be determined in an inquiry under s.17C into the alleged contraventions of RPS 3 [Radio Program Standard 33. He or she would understand that the corporate action of the Tribunal in filing defences to the action brought by the appellant -did not involve a judgment of the issues in the action by the individual members of the Tribunal. Moreover, the action is not brought to enforce any personal liability on the part of Tribunal members as individuals. Although the action, if successful, would result in a verdict against the Tribunal in its corporate capacity, it is scarcely likely that government would fail to ensure that the Tribunal had available to lt funds to meet the amount of any verdict. In the result, there is no reason for the observer to suppose that any of those members who participate in the inquiry would have any material interest, direct or indirect, which would induce him or her to bring other than an impartial and unprejudiced mind to bear on the resolution of the relevant issues."

It is to be observed that Mason CJ and Brennan J use language which is somewhat different from that used in Livesev notwithstanding that the decision ln Llvesey is referred to in the passage which has been quoted. They say, "in assessing what the hypothetical reaction of a "fair-minded observer would be. " Earlier they said " . . . would bring other than an unprejudiced and impartial mind . . . " . In contrast, in the language used in the passage quoted from the judgment in Livesey, the operative word is e~ther "may" or "rn~ght". Thus it is s a ~ d that views wh~ch a judge has expressed in his judgment in some previous case "may result" in an appearance of pre-judgment; later they refer to a situation where one of the partles or a fair-minded observer "might entertain" a

reasonable apprehens~on

of blas or pre-judgment.

In m Deane J said (at 91-92):-

"Subject to the question of the operation of the rule or doctrine of necessity, there 1s nothlng in the overall provlslons of the Act or in the circumstances in which the Tribunal must function which would warrant the conclusion that prejudgment of the actual issue involved in an inquiry does not constitute disqualifying bias. That being so, the actuality or the appearance of prejudgment of the primary issue involved in the Tribunal's proposed fresh inqulry is inconsistent with the requirements of procedural fairness which the Tribunal must observe. If the Tribunal as a whole is affected by the actuality or the appearance of such prejudgment, the Tribunal will, subject to the possible operation of the doctrine of necessity, be precluded from embarking upon that proposed inquiry. If the Tribunal as a whole is not so affected but some of its members are, those members will, subject again to the possible operation of the rule of necessity, be disqualified.

........ ........ ........ ........ ........ ........ ....

Even where the actuality or the appearance of blas on the part of a particular member or particular members has resulted from the discharge of the relevant tribunal's functions, it will ordinarily be possible to say that neither the partles or a fair- minded, lnformed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of the particular member or members."

In them judgment in Laws, Gaudron and McHugh JJ referred to a number of authorities including Livesev. They said (at

100) :-

"When suspected prejudgment of an lssue is relied upon to ground the disquallficatlon of a decision- maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to hlm or her."

Thus the language used is emphatic and positive

More recently the High Court considered the matter again in Re Media, Entertainment & Arts Alliance and Theatre Managers Association: Ex Darte Hovts Corporation Ptv Limited (1994) 68 ALJR 179. That was a case whlch concerned a hearing before the Full Bench of the Industrial Relations Commission

The Court (Mason CJ and Brennan, Deane, Dawson and Gaudron JJ) said (at 182) that the rule against bias is directed to ensuring that a judge or a member of a trlbunal that is bound to act judicially brings, and is seen to bring, an impartial and unprejudiced mind to the resolution of the question to be decided. Reference was made to a number of authorities including the decisions of the High Court in both Livesev and

Lawg.

Later the Court said (at 182):-

"However, in the case of the rule agalnst bias, the question is not whether there is or was an opportunity to present or answer a case, but whether, in the circumstances, the parties or the public misht entertain a reasonable apprehension that information or knowledge wh~ch has been independently acquired will influence the decision."

The emphasis is added.

Thus the operative word is that used in Livesev, namely,

"might", not

"would".

There was discussion about the apparent inconsistency in the course of the argument before us.

It seems clear that the

members of the High Court in Laws dld not ~ntend

to lay down

any test different from that which had been formulated in Livesev. In substance all three decisions apply the same test. I do not think it a matter of consequence whether one expresses the test in terms of "might" or "would"; I think the conclusion to be drawn is that the apprehension must be soundly based. The matter must be looked at reasonably. If, in all the c~rcumstances, one takes the view that there is a real foundation for the suggested apprehension, then disqualification must follow.

The authorities referred to enunciate the general principles to be applied and give substantial guidance on how a question such as that which is to be determined here is to be approached. In the context of this case, there are three particular matters which, however, require closer attention. These are:

(1) The authorities referred to deal with judges or members of administrative tribunals bound to act judicially. Is any different approach to be made where the decision- maker, although bound to accord procedural fairness to a party likely to be affected by the decision, is not a formally constituted tribunal such as the Broadcasting Tribunal in Laws or the Industrial Relations Commission

in Hovts

(2) What is the extent of the knowledge of the facts and

circumstances of the matter that, for the purposes of the

exercise, the Court needs to impute to the fair-minded

observer or a party adversely affected by the decision?

(3) How does one judge whether or not there is justification for bias sard to be held by a party adversely affected by the decision? Is there any difference of substance in the treatment of such a case and a case where the question is whether an informed observer has that apprehension? The question is important here because of the emphasis placed by hls Honour upon the appearances of matters to Ms. Mok. In the authorities so far discussed, the position of the party and the informed observer appear to have been treated indistinguishably. That appears to have been so both in Livesey and Hovts.

The declsion of the Hlgh Court in

v The Oueen (1994)

68 ALJR 582 was published after this matter was argued. The

facts of the case are very different from the facts here but there are to be found some statements of principle in the judgments whlch are of assistance in answering the questions posed above. The case concerned the posltion of a juror in a murder trial who brought flowers to court and, on impulse, asked a bystander to give them to the murdered person's mother who was present in court. Counsel for the persons accused asked that the jury be discharged, but the trial judge, having identified the juror, who apolog~sed for being impulsive, ruled that the trlal should proceed after giving the jury a specific d~rection to disregard all emotional inclinations and

to assess the evidence objectively. By majority the High Court held that the judge's warnings to the jury were sufficient to overcome any bias that might reasonably have been apprehended.

One of the questions which arose for decision was whether the High Court should depart from the approach it had adopted in earlier cases and prefer the approach adopted by the House of Lords in B v Gouah [l9931 AC 646. All judges decided against this course. Mason CJ and McHugh J, two of the majority, said (at 586-7):

"In Gough, the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on whlch the decisions in this Court are based is that public confidence in the admin~stration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the "lay observer" Vakauta (1989) 167 CLR, at 573, 574,

the	"fair-minded observer" *L i v e s e y* (1983) 151 *CLR,*

at 300; Laws (1990) 170 CLR, at 87, the "fair- minded, informed lay observer" Laws (1990) 170 CLR, at 92, "fair-minded people" The Queen v W a t s o n (1976) 136 CLR 248 at 263, the "reasonable or fair- minded observer" Vakauta v K e l l y (1989) 167 CLR 568 at 585, the "parties or the public" Ex p a r t e Hoyts C o r p o r a t i o n P t y L t d (1994) 68 ALJR, at 182, and the "reasonable person" Vakauta (1989) 167 CLR, at 576 abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own vlew, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair- minded and lnformed members of the public cannot be

ignored. Indeed as Toohey J pointed out in Vakauta ibid, at 585, in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judic~al

process which ordinary experience suggests is not

the case.

"...lf the reasonable apprehension test remains the test for alleged bias on the part of a judge, as we think it should, it is not easy to see why a different test should be applied to a juror. In criminal trials, in particular, the jury's function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a cornmissloner determining an industrial dispute or a member of a statutory trrbunal inquiring lnto conduct in an industry which it supervises. The public is entitled to expect that lssues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without blas. It is true that, unllke the judge and persons exercising quasi-judlcial functions, the juror is subject to the directions of a third party -- the trial judge. In considering whether a reasonable apprehension of bias exists, it 1s therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. But that difference does not seem to us to be sufficient to distinguish the test for juror bias from the test for judges and persons who exercise quasi-judicial

functions."

In his dissenting judgment, Deane J said (at 594-5):

"In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not brlng an impartial and unprejudiced mlnd to the resolution of the question" in issue. The quoted words ln that statement of the test are taken from the judgment of the Court in L~vesey v New South Wales Bar Association. In that case, and in a

number of the other cases, the test was stated in terms of an apprehension on the part of "the parties or the public". So stated, the test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law. I have used the word "apprehension" in preference to the word "suspicion" for the reason that the latter word is capable of conveying shades of meaning which are inappropriate in this context. As a practical matter, however, there is little, if any, difference between the content of the two words when prefaced by "reasonable" and I have, in referring to authority in this judgment, on occasion treated them as interchangeable."

His Honour added (at 595):

"None of the recent cases in the Court in which the above test was formulated and applied was concerned with an allegation of an appearance of bias on the part of a juror. The "reasonable apprehension" test has, however, been applied by the Court in cases involving a statutory officer other than a judge and there is no convincing reason of principle why the test applicable to a case involving an allegation of an appearance of bias on the part of a juror entrusted with the discharge of the curial function of deciding questions of fact should be different from that applicable to a judge. In my view, the "reasonable apprehension test" should be applied regardless of whether a question of the appearance of bias arises in relation to a judge, a statutory office holder who is obliged to observe the requirements of procedural fairness or a juror. I note that the application of that test to cases involv~ng a juror is supported by the weight of recent authority in other courts in this country. On the other hand, it conflicts with the conclusion of the House of Lords ln the recent case of R v

Gough.

I have omitted the footnotes and the cases referred to

thereln from the quotation of these passages. Numerous authorities are referred to. Some of these have already been mentioned; others have not. I have not thought it necessary to list the authorlties because it is the statements of principle in his Honour's judgment which need to be considered and applied. I should add that, although the judgment of Deane J was a dissenting one, the statements of principle which are propounded are in accordance with the mainstream of authority. Deane J's dissent was in the application of principles, not in the statement of them.

Later his Honour said (at 599):

"While the test of reasonable apprehension on the part of a fair-minded informed lay observer is to be applied in this country in cases involving a judge, a juror or a statutory offlce holder required to observe procedural fairness, the standard which such an observer would requlre of each will vary according to the function being discharged and the particular circumstances. Thls is particularly so

In a case of alleged disqual~ficatlon

by conduct."

His Honour went on to discuss the particular position which applles in relation to a juror, a matter not relevant for present purposes.

The authorlties to which Deane J referred in support of the proposition that the reasonable apprehension test applies to a statutory officer other than a judge were all cases whlch involved statutory tribunals. I instance the Conciliation and

Arbitration Commission with whlch the Court was concerned in B

v Commonwealth Conc~liation and Arbitration Commission: Ex parte Analiss G~OUD (1969) 122 CLR 546; the Greyhound Racing Control Board wh~ch was involved in Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; the Builders' Registration Board -(Qld) which was involved in Builders'

peaistration Board (Old1 v Rauber (1983) 57 ALJR 376; the

Broadcasting Tribunal which was involved in Laws; and the rent assessment committee which was involved in Metr0~0litan Prouerties CO (FGCI Ltd v Lannon [l9691 1 QB 577. I confess that I have not myself found any authority in which the decision of a Minister of the Crown or other administrative officer was challenged for apprehended b~as. But, on the basis that in this case the delegate was obliged to accord procedural fairness to the respondent, I see no reason in principle why the same rules do not apply to the delegate. The difference in the position of a person such as the delegate here and, for example, of a judge is accommodated, so it would seem, by what Deane J said in (at 599), namely that the standard which the observer would require of each will vary according to the function being discharged and the

particular circumstances. The particular circumstances in

itself concerned the nature of the trial process. There the judge was able to give clear and strong directions to the juror to put aside as irrelevant any sympathy he may have had for the victim of the crime or his relatives.

One of the circumstances that I think it is right to take

into account In the present case is that the decision here in

question was made in private. There was no public hearing.

An applicant for refugee status had the opportunity of making

submissions in writing and, of course, knew of antecedent proceedings including the provisional determination of the matter and the hearing before the Refugee Status Review Committee, But there was no formal procedure as there would have been in the case of a proceeding in a court or in a formal tribunal such as the Industrial Relations Commission or some of the other tribunals which have been involved in the various cases. Nevertheless, I do not think that the adlinlstrative character of the process should be lost sight of. Mr. Paterson happens to be a quallf ied lawyer, but many decision-makers in this area and in other similar areas are not. All that can be said, I think, is that the whole of the circumstances must be taken into account and a decision made whether the fair-minded observer might have a reasonable apprehension that Mr Paterson's decision may have been biased.

I think the answers to the questions earlier posed are as

follows :

(1) Mr. Paterson, being bound to accord Ms. Mok procedural fairness, was a decision-maker who could be disqualified if the court thought that a fair-minded observer might have a reasonable apprehension that he would or might bring a biased mind to the question to be decided. In order to determine this question, the court must take the whole of the circumstances into account including the

fact that the decision-making process does not take place in public. The court also needs to bear in mind that the process is an administrative one and that, although the decision-maker is required to act judicially or at least to accord procedural falrness to parties likely to be affected, the approach must be one whlch is reasonable in all circumstances.

problems in Phnom Penh for those Cambodian citizens who resided there. However, the subsequent correspondence, particularly the Department's letter of 4 December 1992, showed that the uncertain position which was revealed in the June report continued to exist. In that sense it may be correct to say, as Mr. Paterson did, that his decision not to obtain any further report from the Department before making his decision in November 1992 did vindicate him. If the matter depended upon a consideration of that question, it may have been difficult to reach a conclusion about it. On the one hand, it could be said that Ms. Mok had been denled procedural fairness because no later report had been obtained from the Department. Against that it could be said that, although that was so, a later report would not have helped the pos~tion because it would have revealed that the fluid situation continued. The result may have been that the Court, in the exercise of its discretion, would have refused to grant relief on the ground of failure to obtain a later report. This, however, is where it is important to consider the next point relied upon by counsel for the appellants, namely his challenge to hls Honour's conclusion that Mr. Paterson misunderstood the meaning the term "well-founded fear of persecution". That is the matter to which I next turn.

Well-founded Fear of Persecution

A consideration of this submission requires, in my

opinion, firstly a short analysis of the judgments of the High

Court in the case and then a consideration of some of the

statements made by Mr. Paterson in his reasons for his decision. To me the reasons provlde a surer guide to whether or not he misdirected himself on the question than does his oral evidence.

In relation to m, it should first be mentioned that the Act was then in a form different from the form in which it was at the time that Ms. Mok's application was considered. The difference, however, is not of any consequence. In question were the Convention and the Protocol. The Court was concerned with the construction of the words, "owing to well- founded fear of being persecuted for reasons of race, religion, national~ty, membership of a particular social group or particular opinion". The thrust of the decision of four of the judges of the Court (Mason CJ and Dawson, Toohey and McHugh JJ) was that an applicant for the status of refugee would satisfy the definition if he showed a genume fear founded on a real chance that he would be persecuted for one of the stipulated reasons if he returned to the country of his nationality. It may be mentioned at this po~nt also that the court decided that the time at which the status of refugee was requued to be held was the tlme the determination was made.

In the course of his judgment, Mason CJ sald (at 389) that he agreed with the conclusion reached by McHugh J that a fear of persecution is well-founded if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. He then referred to a number of

authorities where different expressions had been used by other

judges. These included Immiaration and Naturalization Service v Stevic (1984) 467 US 407 at 425 where Stevens J, in delivering the majority opinion of the Supreme Court of the United States, observed that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibil~ty". Mason CJ said (at 389) that he d ~ d not detect any significant difference in the various expressions to which he had referred. He added that he preferred the expression "a real chance" because it clearly conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression which had been explained and applied in Australia.

He referred to Bouahey v The Oueen (1986) 161 CLR 10 at 21.

His Honour continued (at 389):

"If an applicant establ~shes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recogn~tion of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin."

In the course of his judgment McHugh J s a ~ d

(at 429):

"The decisions in Sivakumaran [Rea. v Home Secretarv: Ex Darte Sivakumaran [l9881 AC 9581 and Cardoza-Fonseca [Immiaration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 4211 also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca

an applicant for refugee status may have a well- founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far- fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol."

On the basis of what McHugh J there said, it seems correct to say that he would equate a real chance that an applicant would be persecuted to a chance which was one which had only a 10 per cent possibility of occurring. AS previously mentioned, Mason CJ expressed his agreement with McHugh J in relation to this part of his judgment.

Dawson J said (at 396) that the phrase "well-founded fear of being persecuted" contained both a subjective and an objective requirement. He said that there must be a state of mind - fear of being persecuted - and a basis - well-founded for that fear. He added (at 396-7):

"Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear. The differences which have arisen have largely stemmed from a desire to place a greater emphasis upon either the subjective or the objective element of the phrase. Paragraph 42 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees in 1979 states that:

"In general, the applicant's fear should be considered well-founded if he can establ~sh, to a reasonable degree, that his continued stay Ln his country of or~gin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable

if he returned there."

Perhaps the emphasis upon the subjective element in this view of the test was prompted by recognition of the fact that some member States of the Convention are reluctant to find an actual danger of persecution in another country for fear of damaging relations with that other country: see Reg. v . Home Secretary; E x parte Sivakumaran [l9881 A.C. 958, at p. 998. But "well-founded" must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him, to have no foundation. It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it. Only limited recognition of this is given in the further observation in par. 204 of the Handbook that an applicant ' s statements must be 'coherent and plausible, and must not run counter to generally known facts1.

On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it wlll be realized."

In his judgment Toohey J said (at 406):

"The use of the adjectival expression 'well-founded' must be taken as qualify~ng in some way the 'fear of persecution'. It is hard to conceive of a fear which has no objective foundation at all as well- founded, no matter how genuine the fear might be.

If the test were entirely subjective, the expression

'well-founded' would serve no useful purpose. On the other hand, it 1s fear of persecution of which Art. l ~ ( 2 ) speaks, not the fact of persecution. So it 1s apparent that while the requirement is not entirely subjective, it is not entirely objective. Both elements are present. There must be a fear on the part of the applicant and that fear must be of persecution."

His Honour then considered the meaning of the expression "well-founded". And concluded (at 407) that he should take the view that there would be a well-founded fear if there was a real chance of persecution. He added (at 407):

"It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. That is not to say that its application will be easy in all cases; clearly, it will not. It is inevitable that difficult judgments will have to be made from time to time.

If the test of "a real chance that he will suffer persecution" had been applled to the appellant, a determination refusing him refugee status is, in all the circumstances, one that could not reasonably have been made."

Wlth these varlous dicta in mind, I come to the question whether Mr. Paterson's reasons disclose that he misdirected himself on the question to be decided. I have reached the conclusion that he did. It seems to me that there are signs that he approached the matter as if his task were to determine the question on a balance of probabilities. Some support for that conclusion 1s to be found in the passage from his evidence earlier quoted. I do not think that he really turned his mind to the question whether there was "a real chance" in the sense of a chance that had less than a 50 per cent possibility of occurring. Certainly he did not consider whether the chance that Ms. Mok might be persecuted might be as remote as 10 per cent.

Language used by Mr. Paterson in his reasons which leads me to t h ~ s conclusion 1s to be found in a number of places. I give only some examples. A phrase used by Mr. Paterson in two places in his reasons is, "I gave greater weight to. . . " . In para 4.2.1 he discussed the Shoesmith Report whlch was dated

17 February 1992 and the DFAT report dated 22 June 1992. He

concluded his consideration of these reports by saying, "I gave the DFAT material greater weight as it is more recent and collected by impartial and professional officers based in Cambodia." In para 4.6.8 Mr. Paterson said that he gave greater weight to DFAT advice that there was no continuing Vietnamese military presence in Cambodia.

I find it difficult to accommodate the use of the expression "I gave greater weight to.. . " to the assessment of a real chance that a person may be persecuted on return to another country. The chance spoken of is a chance that is less than 50 per cent and one which may be as low as 10 per cent. That is the purport of the decision in Chan's case. The language Mr. Paterson has used is the language of a decision-maker deciding something upon the balance of probabilities. So often, for example, in cases involving personal injury, a court or trlbunal has to make up its mind whether a particular medical condition is likely to continue indefinitely or to clear up. Eventually the court or tribunal expresses a preference for the evidence of one doctor to that of another. In some cases it will thereafter exclude that one and proceed upon the basis of the preferred one. In other cases it may say that, although the probabilities are that the position will be as pred~cted by one doctor, it cannot be denied that there is a possibility that the view of the other doctor will after all be the correct one. The court will then proceed to assess damages, not on the basis that the condition is likely to recur, but on the basis that it is possible that

it will.

The phrase "gave greater weight to" is not infrequently found in the reasons for decision of administrative decision- makers. It seems li-kely that its use has stemmed from remarks made by Mason J in Minister for Aboriainal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24. His Honour said (at 41) that it was generally for the decision-maker and not for the Court to determine the appropriate weight to be given to the matters required to be taken into account in exercising the statutory power. But Mason J was not there speaking of a case which required the assessment of "a real chance". He was dealing with the more usual situation where the decision-maker was required to decide or reach conclusions on particular facts or matters. In those cases the use of the phrase is apt. But this is not such a case.

In the present case, it seems to me that either there was nothing to be said for Dr. Shoesmith's view or, although there was something to be s a ~ d for it, the predictions of the Department of Foreign Affairs were more likely to be correct. But that did not mean that Dr. Shoesmith's report should have been dismissed out of hand. It was a factor still to be taken into account not as a probability but as a possibil~ty and thus as providing, perhaps, a basis for saylng that there was a real chance of persecution in the sense in which that expression has been explained by the judges Ln m. In my opinion this is enough to infect M r . Paterson's reasons with

error.

One of the matters about which Mr. Paterson seems to have been satisfied was that, whatever problems remained in Cambodia as a consequence of the presence of the Khmer Rouge in certain areas, those problems did not exist in Phnom Penh where he seemed certain that Ms. Mok would go. It was for this reason that in para 4.2.3 . Paterson said he thought irrelevant Dr. Shoesmith's statement that Chlnese Cambodians living outside Phnom Penh would still face particular risks from the Khmer Rouge. What he did not assess was the chance that she might have to live outside the capital because she was compelled to do so.

I have found it diff~cult to understand the significance of the statement in para. 4.3.1 concerning claimed general restrictions on Ms. Mok's ability to practise her religion. Mr. Paterson said that he did not cons~der that these claimed

general restrictions amounted to a denial of Ms. Mok's rlght to practise her religion but rather as a limitation of that right. He acknowledged that an incident Ln which her house had been ra~ded by the authorities was no doubt distressing to Ms. Mok and her family. But he considered it as a "one-off"

~nc~dent. He concluded that it dld not amount to persecution. I have grave difficulty in understanding why it dld not nor do I understand why a restriction on the right to practise a rel~gion as dlstinct from forb~ddrng the practice of it altogether does not itself constitute persecution or may not

constitute persecution in a glven set of circumstances. There is no indication that Mr. Paterson considered these matters at all. His reasons consist of assert~ons in the form of f indings . But findings are made in the context of ascertaining what has occurred in the past or what is likely to be a particular state of affairs in the future on a balance of probabilities. It is not the assessment of the real chance of something that has occurred or may occur in the future.

Mr. Paterson did not turn his mind to these problems in the

remarks he made concerning the practise of Ms. Mok's religion.

In the same category are statements made by Mr. Paterson in para 4.6.1 in which he said he accepted that the Khmer Rouge currently had a presence in Phnom Penh. He assessed that that presence was not an active presence such as to give rise to Convention concerns. Again, that is not the question which he was required to decide. He needed to address the question whether there was a real chance, in the sense in which the expression is understood, that the Khmer Rouge presence was such as to give rise to "Convention concerns" in relation to Mrs Mok. Again there is no attempt to assess the degree of possibility that the Khmer Rouge presence in Phnom Penh might lead to problems.

Mr. Paterson's reasons conclude with the statement, "When the applicant is returned to Cambodia, she wlll be sent to an area where there is no Khmer Rouge activity. On that basis, her fear of persecution by the Khmer Rouge is not well-

founded . " On the basis of his evidence earlier quoted Mr. Paterson would wish that passage to be read as if it had said that there was no real chance whatever of persecution. That may have been a conclusion which was open to him. But he does not deal with the matter in that way. There is not to be found in the reasons any statement which suggests that he turned his mind to the right question, namely, was there a real chance of persecution if Ms. Mok were returned to Cambodia.

I am thus of opinion that the challenge to his Honour's conclusion that Mr. Paterson misunderstood the meaning of the term "well-founded fear of persecution" must fail. The result is that the appeal must be dismissed notwithstanding the measure of success which the appellants have had in relation to the bias point.

Other Matters

My conclusion in that respect makes ~t unnecessary for me

to reach a conclusion on the questlon of the significance of

Mr. Paterson's failure to obtain from the Department of

Foreign Affairs a more recent report than that of 22 June 1992. Nor is it necessary for me to cons~der the remaining grounds which concern a denial of natural justice occasioned by Mr. Paterson's £allure to provide Ms. Mok wlth a copy of the "Fordham Report", his Honour's suggested error in concluding that Mr. Paterson should have approached the problem in a two-stage way by ascertaining, flrst of all,

whether Ms. Mok's fear was well-founded in 1990 when she arrived in this country and then deciding whether changes in relevant circumstances were such that her original fear of persecution was no longer well-founded at the time the decision was made, and whether Mr. Paterson was influenced in making his decision by "the attributes and experience" of members of the Refugee Status Review Comm~ttee.

Although it is unnecessary for me to do so, I propose, nevertheless, to say something about what I might describe as the time point. It 1s enough, I think, to say that the decision in makes it clear that there is no two-stage process. The circumstances to be considered are those which exist at the time the decision is made. Of course it is relevant to take into account the circumstances which existed at the time the applicant for refugee status left the country of his or her nationality. But what needs to be done is to take into account the whole of the circumstances and make a decision as to what the position is at the date that the matter is decided. The point is illustrated by the fact that it is quite possible that a person may leave a country for reasons quite unassociated with any fear of persecut~on.

Events taklng place in the country after the person's departure may warrant his or her developing a well-founded fear of persecution long after departure. It follows that I think that his Honour's approach was incorrect. So far as that matter is concerned the appeal should be upheld. But that conclusion w ~ l l not assist the appellants because of my

conclusion in relation to Mr. Paterson's misunderstanding of

the expression "well-founded fear of persecution".

Conclusion

The result is- that the appeal should be dismissed. However, because of recent amendments to the relevant legislation, I would substitute for the order made by his Honour an order that Ms. Mok's application for refugee status be referred to the Minister to be dealt with according to law. I would delete from the order the reference to the decision being made by a delegate other than Mr. Paterson. There is no need for that part of the order because of my conclusion in relation to bias.

It remains to deal with the question of costs both of the proceedings below and of the appeal. His Honour ordered that the respondent pay 90 per cent of Ms. Mok's costs of the proceedings at first instance including reserved costs. The proceedings occupied 40 hearing days. Five of these were occupied with Mr. Paterson's cross-examination. The discovery which was involved was, to say the least extensive. We were informed by counsel for the appellants that 2 million pages of documents were discovered. Of these some 200,000 pages were read by the parties and 20,000 pages went m t o evidence.

I confess that I find these statements somewhat difficult

to comprehend. It is not that I do not accept what counsel

said. The difficulty I have is to comprehend the enormity of

the task of preparing the case for hearing. Presumably there must have been a good deal of culling because the eighteen volumes of the appeal book occupy slightly less than 4,500 pages. These include approximately 2,000 pages of transcript. It is perhaps enough for present purposes to say that the costs of the matter must be extremely large due principally to the extent of the discovery and the prolonged hearing.

In the view I take of the matter, the appellants should have had a greater measure of success than they enjoyed before his Honour. Much time must have been taken up I-n dealing wlth matters, particularly the question of bias, both actual and apprehended, upon which the appellants, in the view I take, should succeed. In the circumstances it may be that there should be no order as to the costs of the proceedings at first instance or that, because of Ms. Mok's overall success, there should be a fractional order. It would seem, however, that it would not be appropriate to allow hls Honour's order for payment of 90 per cent of Ms. Mok's costs by the appellants to stand.

Because of the complexity of the matter it seems undesirable for us to make a decision without hearing further from the parties. In those circumstances, I would propose that directions be given that each of the partles make submissions in writing, llmited to 10 pages, concerning the question of the costs at flrst instance.

So far as the costs of the appeal are concerned, the appellants, although they have failed, have had a degree of success. In the circumstances I would order the appellants to pay 60 per cent of Ms. Mok's costs of the appeal.

I certify that this and the 69 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.

Associate G

Dated 2234.&k 199

APPEARANCES

Counsel for the Appellants:

R.R.S. Tracey QC with

A. Cavanough

Solicitors for the Appellants:

Australian Government

Solicitor

Counsel for the Respondent:	P.N. Rose with G.J. Moloney
Solicitor for the Respondent:	MS Eve Lester
Dates of Hearing:	7, 8 and 9 March 1994
Place of Hearing:	Melbourne
Date of Judgment:	22 December 1994

[1994] FCA 1035

22 Dec 1994