NAJJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1131

FEDERAL COURT OF AUSTRALIA

NAJJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1131

NAJJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N471 of 2002

WILCOX J
6 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N471 OF 2002

BETWEEN:	NAJJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	6 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N471 OF 2002

BETWEEN:	NAJJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	6 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal refusing a protection visa.  The application was made by a family consisting of husband, wife and two children.  The husband has appeared to argue the application for review on behalf of himself and the other members of his family.  He is not legally represented but he has had the advantage of assistance from a friend in preparing some written submissions, both in chief and in reply.  The written submissions are well written.  It is clear that the friend who assisted the applicant had a good command of English and was able to help the applicant understand the nature of the case that it was necessary for him to put before the Court.

2. The applicant represented himself today.  He had the benefit of an interpreter.  He put his case very clearly.  I do not think that it suffered from the fact that he did not have a lawyer to represent him. 

3. The only ground taken by the applicant, for contending the Tribunal’s decision should be set aside, is bias.  I have no doubt that actual bias remains a good ground for the Court interfering with a Tribunal’s decision.  If a decision is made by a biased Tribunal it cannot be said that the decision-maker was acting in good faith in making the decision. 

4. That proposition was not disputed by counsel for the Minister in his written submissions.  However, counsel argued there was no material from which the Court can infer bias. 

5. In his written submissions, the applicant did not refer to anything in the conduct of the case which might indicate bias but he gave six examples of alleged bias which he extracted from the Tribunal’s reasons for decision.

6. Counsel for the Minister canvassed each of those six matters and put submissions as to why they did not indicate bias.  In his written reply, the applicant put arguments against the correctness of the Tribunal’s findings about those six matters. 

7. I do not think any purpose will be served by my going through each of the six matters and discussing the correctness of the Tribunal’s findings of fact.  As I explained to the applicant, and I think he understands, it is the Tribunal's function to find the facts.

8. Where two different people hear evidence in a case they may come to different opinions about what are the appropriate findings of fact.  The circumstance that somebody else may have a different opinion about the findings reached by a judge, or magistrate, or tribunal does not mean the judge, magistrate or tribunal is biased.  This is so even if an appellate court, for example, prefers a different view of the facts.  The legal system acknowledges the possibility of error in finding the facts of a case.  More than this must be shown in order to demonstrate bias.

9. The problem in the present case, from the applicant's point of view, is that nothing more than this is shown.  I do not wish it to be thought that I think the Tribunal member was wrong in her findings about the six matters.  I have no opinion about the correctness of her findings.  I do not think it is part of my task to form such an opinion.  It is part of my task to look at what is said about the six matters in the Tribunal’s reasons for decision, and to consider whether the Tribunal member appears to have given serious thought and made considered judgments about those six matters.

10. I had the benefit of reading the applicant’s submissions in chief, and the Tribunal’s reasons for decision, before coming in to court.  It was apparent to me that, in relation to each of the six matters, the Tribunal carefully considered what was the appropriate finding of fact and gave reasons for the view which the member reached.  I appreciate that the applicant thinks that she reached a wrong view about those matters.  However, they were all findings of fact and, therefore, within the purview of the Tribunal, not the Court.  Counsel for the Minister contended that the view the member reached was open to her and I agree with that.

11. I see nothing in any of the six examples to indicate bias by the Tribunal member.

12. During the course of oral discussion today, the applicant raised a matter that was not referred to in his written submissions.  He said the Tribunal member questioned him and found fault with matters he had put to her.  He referred to the fact that she went carefully through his passport, and his wife’s passport, and asked questions about entries in the passports. 

13. I do not think this indicates bias.  The system of Tribunal review is one in which members are required to satisfy themselves about the validity of a person’s claim to be refugee.  There is no representative of the Department of Immigration to put a case against the person being a refugee.  The members have to work out the situation for themselves.  They have the benefit of seeing the Department’s file, including the decision of the delegate of the Minister who made the first decision to refuse a protection visa.  They also have access to information about circumstances in the country concerned in the claim.  In the present case, it seems, there was a considerable amount of country information and the Tribunal member looked carefully at that information.

14. An applicant for refugee status is entitled to an oral hearing before the Tribunal in order to put such matters as may be helpful to persuading the Tribunal of the correctness of the claim for refugee status.  It is the duty of Tribunal members to subject those matters to careful scrutiny.  If a Tribunal member is doubtful about the correctness of a claim, then it is helpful for the Tribunal member to indicate that fact, and thereby alert the applicant to the need to put the doubt to rest.  So bias is not established by the mere fact that the Tribunal member asked questions of the applicant, even questions containing an implication that the matter being raised is a problem for the applicant. 

15. The critical matter, in relation to bias, is whether or not the Tribunal member kept an open mind about the case, in the sense of being prepared to come to a conclusion in favour of the applicant if the evidence is sufficiently strong and the arguments sufficiently persuasive.  The fact that a Tribunal member closely interrogated an applicant is not enough to demonstrate that the member was unprepared to deal with the case on its merits.

16. As to the passports, I see nothing sinister in that at all.  The passports were important documents.  They were accepted as authentic.  Therefore they provided reliable evidence as to entrances to, and departures from, various countries by the applicant and his wife.  I well understand why the Tribunal member wished to use this material in order to get a reliable picture of the movements of the applicant and his wife. 

17. It seems to me that there is no basis for imputing bias to the member.

18. I emphasise that, in coming to that conclusion, I am not expressing an opinion, one way or the other, about the correctness of the Tribunal's findings of fact.  I am simply saying that there is nothing in the case which demonstrates to me that the Tribunal member failed to act in an unbiased way and in good faith. 

19. As lack of good faith is the only ground relied upon, the application must fail.  The order of the Court will be that the application be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox .

Associate:

Dated:            13 September 2002

The applicant appeared in person
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 September 2002