Vauu v Refugee Review Tribunal - [2002] FCA 417

FEDERAL COURT OF AUSTRALIA
Vauu v Refugee Review Tribunal [2002] FCA 417
ADMINISTRATIVE LAW ‑ Natural justice ‑ Reasonable apprehension of bias ‑ Application for protection visa ‑ Refugee Review Tribunal ‑ Tribunal member hears review application in which a third party gives evidence for applicant ‑ Same member proposing to hear third party’s review application ‑ Prohibition ‑ Whether fair minded lay observer or properly informed lay person might apprehend prejudgment.
Migration Act 1958 (Cth) s 424A
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 applied
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 applied
VAUU v REFUGEE REVIEW TRIBUNAL and KIM ROSSER, MEMBER, REFUGEE REVIEW TRIBUNAL
V 52 OF 2002
SUNDBERG J
11 APRIL 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 52 OF 2002

BETWEEN:

VAUU
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

KIM ROSSER, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

11 APRIL 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The motion notice of which was filed on 25 January 2002 be dismissed.
2.        The applicant pay the respondents’ costs of the motion.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 52 OF 2002

BETWEEN:

VAUU
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

KIM ROSSER, MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SUNDBERG J

DATE:

11 APRIL 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BACKGROUND FACTS

The applicant claims to have left Iran in July 2000 after playing an instrumental role in an anti‑government uprising in his home town of Abadan. He says he is an active supporter of the Fedayeen‑e Khalq Organisation (Majority Faction) (“FKO”), an outlawed Socialist group that operates clandestinely in Iran. The applicant left Iran with two acquaintances who also claimed to have participated in the Abadan uprising. All three stowed away on a merchant ship. They were assisted to stow away by the applicant’s cousin, who was a merchant seaman. I will call the applicant’s acquaintances “the stowaways” and his cousin “the cousin”. Upon arrival in Portland, Victoria, in September 2000 the applicant and the stowaways jumped ship and sought asylum. The cousin also sought asylum on the ground that he would face a well‑founded fear of persecution in Iran when it was reported that he had helped three activists escape. All four applications were rejected. The applicants sought review by the Refugee Review Tribunal. The review hearings of the applicant’s and the cousin’s cases were heard on consecutive days by the same Tribunal member, Mr Keher. The applicant appeared as a witness in support of the cousin’s application, and then as applicant in his own review the next day. Mr Keher affirmed the decisions under review. The applicant and the cousin sought review of Mr Keher’s decision by the Court. By consent both matters were remitted to the Tribunal. The stowaways’ review hearings were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 417
Decision Date: 11 APRIL 2002

CaseChat Overview and Summary

In the case of Vauu v Refugee Review Tribunal, the applicant, Vauu, sought to challenge a decision made by the Refugee Review Tribunal regarding their refugee status. The applicant argued that the decision-maker, Ms Rosser, might not bring an impartial mind to the resolution of their case due to her involvement in previous related decisions. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the decision-maker was subject to a real danger of bias, potentially invalidating the decision made by the Refugee Review Tribunal.

The court examined the comments made by Ms Rosser regarding the earlier decisions and concluded that her remarks did not indicate a fixed intention to follow those findings without consideration of the merits of the current case. Instead, the court found that Ms Rosser acknowledged the need to consider the weight to be given to earlier findings, which is permissible in administrative law. The court held that the applicant had not demonstrated a real danger of bias on the part of Ms Rosser, and thus the decision of the Refugee Review Tribunal would stand.

Given the court's determination that the motion for bias was unsuccessful, the court did not need to address the secondary issue of whether the relief sought related to a privative clause decision for the purposes of the Migration Act 1958 (Cth). The court dismissed the applicant's motion and ordered that the applicant pay the respondents' costs of the motion. This decision reinforces the principle that administrative decision-makers must maintain impartiality, but also highlights the distinction between permissible consideration of previous decisions and impermissible bias.

Orders

Orders of the court

1. The motion notice of which was filed on 25 January 2002 be dismissed.

2. The applicant pay the respondents’ costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SUNDBERG J

For the reasons I have given, a fair minded observer or an appropriately informed non‑observer would not conclude from the fact that Ms Rosser was the decision‑maker in the stowaways’ cases and has heard the cousin’s case, that she might not bring an impartial mind to the resolution of the applicant’s case. It is to be remembered that all she said in connection with the earlier decisions is that factual findings made in them “cannot simply be disregarded”. She went on to say there was a question of how much weight should be placed on them, and again said it was not possible “just to completely disregard the earlier findings” or to “have no regard” to them. Those observations do not indicate an intention to follow earlier findings come what may. As the words used indicate, the earlier findings would not be ignored, but would be taken into account; their significance was a matter of weight. That accords with what Hayne J in Jia regarded as permissible, namely to take into account an opinion formed or fact discovered in another case, a course that is not open to a court which must decide a case by reference only to the evidence advanced in the instant case. See par 9 above.CONCLUSION I am not satisfied that a case of apprehended bias is made out. There was some discussion about whether the relief sought by the applicant was in respect of a privative clause decision for the purposes of s 474 of the Migration Act 1958 (Cth). Since the applicant’s motion must in any event fail, I need not deal with that issue.

Ratio Decidendi

Legal Principle Established

Established by: SUNDBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 52 OF 2002

JUDGE:	SUNDBERG J
DATE OF ORDER:	11 APRIL 2002
WHERE MADE:	MELBOURNE

JUDGE:	SUNDBERG J
DATE:	11 APRIL 2002
PLACE:	MELBOURNE