Wabf v Minister for Immigration

[2004] FMCA 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABF v MINISTER FOR IMMIGRATION [2004] FMCA 4

PRACTICE AND PROCEDURE – MIGRATION – Review of Refugee Review Tribunal decision apprehended or actual bias – background findings relate to different Applicant – jurisdictional error – decision set aside.

Migration Act 1958, ss.423(2), 474
Federal Court Rules 2001, O.62
Federal Magistrates Court Rules 2001, r.21.10

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; 69 ALD 1
NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 713
SAAG v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 547
Plaintiff S157 v Commonwealth (2003) 195 ALR 24
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & IndigenousAffairs (2003) FCA 499

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs;

Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
SAAG v Minister for Immigration & Multicultural & IndigenousAffairs (2002) FCA 547
SBAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 79
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Refugee Review Tribunal, re: Ex parte H (2001) 179 ALR 425
NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 713
NAJJ v Minister for Immigration & Multicultural Indigenous Affairs (2002) FCA 11
NAFG v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FAC 1151
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR
Webb v The Queen (1994) 181 CLR 41
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561

Applicant: WABF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ 57 of 2002

Delivered on: 8 January 2004

Delivered at: Melbourne

Hearing Date: 19 September 2002

Date of Last Submission: 21 May 2003

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Ms D.S. Mortimer (Pro-Bono)

Counsel for the Respondent: Mr. A. Jenshel

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The decision of the Refugee Review Tribunal dated 22 October 2001 be set aside.

2. The matter be remitted to the Refugee Review Tribunal to be further determined according to law by a differently constituted Tribunal.

3. The Respondent shall pay the Applicant’s costs and disbursements to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules up to and including 12 April 2002 and thereafter to be paid pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

WZ 57 of 2002

WABF

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter the Applicant seeks review of a decision by the Refugee Review Tribunal (the RRT) delivered on 22 October 2001.  The application filed in the Federal Court of Australia on 26 October 2001 referred to the Applicant being aggrieved by a decision not to grant the Applicant a protection visa because, according to the Applicant, he did ‘not agree’ with the decision of the RRT.

2. By order made in the Federal Court on 12 April 2002 the application was transferred to the Federal Magistrates Court.  In an amended application dated 13 May 2002 the Applicant claimed to be aggrieved by the RRT decision on the following grounds:

   “GROUNDS

   3.The decision involves an error of law, in that procedures required by the Act to be observed were not observed

   
   

   (s 476(1)(a) of the Act).

   Particulars

   The Tribunal failed to comply with s 424A of the Act, in that it did not supply the Applicant with information it ultimately relied as the reasons or part of the reasons for affirming the decision.

   4.The tribunal failed to ask itself the correct question, in order lawfully to discharge its function to review the decision of the respondent's delegate (s 476(1)(b) of the Act).

   Particulars

   The tribunal found the Applicant was not a national of Afghanistan.  It found it could make no finding that he was a national of Pakistan.  Those findings meant the tribunal was uncertain as to the Applicant's nationality and place of habitual residence.  The tribunal was required to speculate, on the basis it was wrong about its findings as to his nationality, whether if the Applicant was a national of Afghanistan, or would be returned to Afghanistan, he faced a real chance of persecution there.

   5. The Tribunal's decision was affected by actual bias (s 476(1)(f)).

   Particulars

   The conduct of the Tribunal member during the Applicant's hearing, his reasons for decision as articulated and his treatment of the claims and the evidence of the Applicant in those reasons, cumulatively, give rise to the inference that the member had come to the case with a closed mind or had prejudged the credibility and therefore the claims of the Applicant, with the result that the decision was affected by actual bias.”

3. The proceedings in this matter have had a somewhat chequered history.  On 17 May 2002 I adjourned the application pending the outcome of the Full Court of the Federal Court of Australia's decision in what is now known as the case of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; 69 ALD 1 (NAAV).

4. A notice of constitutional matter was filed on 13 September 2002 by the Applicant, together with a proposed amended application. 

5. On 18 September 2002 the Respondent filed an outline of submissions responding to the Applicant's proposed amended application dated 13 September 2002.  Those submissions of the Respondent referred to NAAV.  The Respondent's submissions also addressed the Applicant's contentions of fact and law dated 13 May 2002.  The Respondent submitted that a breach a procedural fairness would not be a ground of review and relied upon the decision of NAAV.  The Respondent otherwise argued there was no jurisdictional error or lack of bona fides.

6. The matter then came before the court on 19 September 2002.  On that day the Applicant was granted leave to file and serve the amended application dated 13 September 2002.  The amended application provided the following grounds for review:

   “GROUNDS OF REVIEW

   1. The Tribunal's decision involved a denial of procedural fairness to the Applicant.

   Particulars

   (i) The Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth).

   2.The tribunal's decision is affected by jurisdictional error.

   Particulars

   (i)     The tribunal was required to assess whether the Applicant was a person to whom Australia owed protection obligations.  In doing that, it was required to assess whether he was “outside his country of nationality” and, owing to a well founded fear of persecution was “unwilling to avail himself of the protection of that country”.  In the circumstances of the Applicant's case and claims, having found that he was not a national of Afghanistan but was a Shi'a and a Hazara, the tribunal was required to make a finding that he was a national of Pakistan in order to be satisfied that Australia did not owe him protection obligations.  In failing to do so, the Tribunal misunderstood the nature of the opinion it was required to form in order to find that the Applicant did not face a real chance of persecution in Afghanistan.

   (ii) The Tribunal failed to engage in the necessary speculation to satisfy the “real chance” test in relation to the Applicant's likely treatment in the future.  Having not made a positive finding that the Applicant was a national of Pakistan (and therefore being unable to find that the Applicant would be permitted to re-enter Pakistan and would not be refouled to Afghanistan from Australia), the Tribunal had no basis for, and expressed no basis for, any confidence that its findings were so certain that it need not engaged in the “what if I am wrong” process and assess his claims on the basis that he might not be permitted to re-enter Afghanistan. 

   3.The Tribunal did not engage in a bona fide exercise of its power to review the decision of the respondent's delegate.

   Particulars

   (i)          The Tribunal made so many factual errors, misstated the identify and background of the Applicant, demonstrated a closed mind and a determination to disbelieve the Applicant from the outset rather than to hear and determine his claims, such that in combination the Tribunal cannot be said to have made its decision in good faith.

   (ii) Further particulars are provided in the Applicant's Statement of facts and contentions.”

7. Apart from permitting the Applicant to rely upon the amended application dated 13 September 2002, it was also noted at the hearing on 19 September 2002 that there were decisions then currently before the High Court relating to constitutional issues and matters relevant to the question of jurisdictional error and the application of

   
   

   s.474 of the Migration Act 1958 (the Act).  A great deal of time was devoted to analysing the reasoning of the court in NAAV and other cases and essentially addressing the issue of whether the court should consider jurisdictional error before determining whether s.474 applies.

8. At the hearing on 19 September 2002, the Applicant was permitted to tender for identification a document entitled “Submission to the Refugee Review Tribunal on Weighing of language analysis and other expert evidence including benefit of the doubt/credibility issues”. 

   
   

   The document was claimed to be relevant to the issue of natural justice and was described as a submission made on behalf of the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs under s.423(2) of the Act. That provision gives the Secretary power to give to the Registrar of the Refugee Review Tribunal written argument relating to issues which arise in relation to decisions under review. The exhibit was said to be a “generic submission” that had been made to the RRT about the use linguistic analysis that the department obtains in relation to Afghan asylum seekers and used in relation to the Applicant in the present case. The document was then received, albeit that at the time, as I understood the Applicant's counsel to concede, that it would be difficult to raise a natural justice issue, though noted that the High Court was then in the process of dealing with that amongst other matters.

9. In the submissions made to the court on 19 September 2002 counsel for the Applicant relied on written submissions in relation to the issue of whether the RRT was either affected by actual bias or whether there was no bona fide exercise in the power exercised by the RRT.  Reliance was placed upon the absence of a bona fide exercise of power as being one of the “Hickman exceptions”.  Counsel referred to a lack of bona fides to be generally taken to involve “a lack of honest or genuine attempt to undertake the task in a way meriting personal criticism of the tribunal.”  In NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 713 at paragraph 24 per Allsop J states:

   “24.As to the content of the phrase ‘bona fide’ in Hickman, it is unnecessary to deal with a debate as to whether one can travel beyond the face of the record in question. A majority of the High Court in O'Toole, supra at 249-50 (per Mason CJ), 275 (per Brennan J) and 305 (per Dawson J, with Toohey J agreeing) held that one could do so (contra 287 per Deane J, Gaudron J and McHugh J). No attempt was made here by the applicant to prove a lack of bona fides outside an examination of the Tribunal's reasons. It is not appropriate to attempt a comprehensive definition of the phrase `bona fide'. Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an `honest' attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase `bona fide' involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs 2002 FCA 547 at [34] to [36]. It is unnecessary for me to express a view on the conclusion his Honour reached in that case after a careful analysis of the facts. To the extent it was submitted before me that his Honour's approach was one which enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker, I reject that submission. The principles applied by his Honour were, with respect, correct.”

10. Counsel relied upon the decision of Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 547 where the court states at paragraph 36 the following:

    “36. I am mindful that a finding that a decision of the Tribunal was not made in good faith will be exceptional. However, in this matter I have concluded that the Tribunal's decision was not made in good faith. I have reached that conclusion by inference from my consideration of the Tribunal's reasons as a whole, and not by taking any particular part of its reasons in isolation. I will not repeat the analysis of the Tribunal's reasons discussed above. In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims. That conclusion is reached notwithstanding that in its consideration of the definition of "refugee" it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the "findings and reasons" section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe at 577-8 set out in [29] above. At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant's claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him. The selective and unfair use of the opinions of Dr Maley about whether the Taliban use Hazara men at the front lines, in the way I have explained above, does not seem to me to admit of error on the part of the Tribunal, given the context in which Dr Maley's views were expressed and also and independently of that context given that the Tribunal has referred to the relevant passage in its recital of independent country information. As I have said, however, it is not one factor but each of the considerations about the Tribunal's reasons for its decision which I have addressed above which has led me to my conclusion.”

11. After the hearing on 19 September 2002 the Applicant was permitted to file and serve further particulars and did so on 21 October 2002.  Annexed to the Applicant's particulars which were filed on 21 October 2002 were two cassette tapes of the proceedings before the RRT. 

    
    

    In the particulars detailed reference was made to the tapes, and to some extent, this added to the oral submissions made on 19 September 2002 which in turn had relied upon the Applicant's outline of submissions filed on 13 September 2002. 

12. In relation to the jurisdictional error issue both parties were given the opportunity to make further supplementary submissions with the Respondent filing supplementary submissions on 14 November 2002 in response to the Applicant's particulars dated 21 October 2002. 

    
    

    The Applicant filed further submissions on 5 May 2003 following the decision of the High Court in Plaintiff S157 v Commonwealth (2003) 195 ALR 24 (S157). The Respondent in turn filed further submissions on 21 May 2003.

13. It is appropriate to therefore deal with the further submissions in relation to the issue of bona fides and the further submissions of the parties of the effect of the High Court decision in S157.  The Applicant sought to further amend the application by effectively relying upon the High Court decision in S157 to incorporate a lack of bona fides as being part of the concept of jurisdictional error. 

14. It is convenient to note the general principles arising from S157 before considering the substantive argument that there have been a lack of bona fides, whether it constitutes a Hickman exception or can validly be considered part of what is now regarded as jurisdictional error.

15. Since S157 when considering the issue of jurisdictional error the Court in my view is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:

    “82.It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

    ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

1. It is also useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:

   “…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”

2. I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant:

   “31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.

   …

   33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):

   ‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’

   …

   35   What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”

3. I further rely upon the Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs; Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 which relevantly states the following:

   “27 The statement that a particular error is a ‘jurisdictional error’ is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker’s lawful authority then the error is made ‘within jurisdiction’. If it does not fall within the decision maker's lawful authority then the error is a ‘jurisdictional error’ and as such it cannot be a valid action or decision.

   28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

   ‘The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.’

   Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”

4. No objection was taken to the court receiving the cassette tapes of the proceedings before the RRT and both parties made reference to the content of the tapes in their written and oral submissions.  Accordingly the cassette tapes became exhibits which were the subject of particulars provided by the Applicant dated 21 October 2002.

5. It was submitted by the Applicant's counsel that there was an absence of a bona fide attempt to exercise the RRT's powers and that this was demonstrated in circumstances which included the reasons for decision commencing by reciting particulars which were not known to the Applicant.  The particulars name another individual, they recite under the heading ‘Background’ particulars which are not those relevant to the Applicant, and otherwise refer to a hearing and hearing date which was not that of the Applicant.  It was submitted that in the circumstances the RRT has “cut and paste” from another decision, but has done so in a way which “belies approaching the Applicant's claim with an open and independent mind”.

6. It was submitted that the RRT had misstated many facts in the recitation of the Applicant's claim including the following:

   ·The Applicant is a farmer (there was evidence his father was a farmer).

   ·The Applicant's village cultivated apples (there was evidence his father did so).

   ·The Applicant denied in his supplementary statement ever having been out of his village (the statement at page 76 of appeal book makes no such denial).

   ·The RRT asserts the Applicant had stated (in his first formal statement) he attended religious schools in a Mosque in his village and then told the RRT he meant a mosque in another village “even though he had said there was no mosque in response to the same question asked at entry interview” (appeal book 113.5).  This recitation in the Applicant's evidence deliberately confuses the distinction the Applicant sought to make between his sub-village and a larger village nearby.

   ·The member asserts that the Applicant subsequently recited in his initial written submissions the towns he passed through on the route out of Afghanistan (appeal book 113.5).  The Applicant gave no such recitation in his initial submissions nor in either of his two statements.

   ·The RRT reports an apparent contradiction between what the Applicant said to the RRT and at entry interview about mountains near his village (appeal book 113.7).  The member asserts the Applicant stated at entry interview there was a "mountain nearby" in contrast to being surrounded by mountains.  His report in the entry interview said no such thing (see appeal book page 3).

   ·The RRT reports an apparent contradiction in timing in relation to the Applicant's attendance at mosque for study.  The member asserts the evidence places this as happening just before the Applicant left Afghanistan (see appeal book 113.7).  The Applicant's statement says no such thing and places no temporal limit on his attendance at the mosque school (appeal book 76).

7. Further criticism was made of the RRT decision on the basis that the RRT's recitation of facts and claims omitted material passages of evidence which cast a most favourable light on the Applicant's claims.  Examples given in the written submissions are as follows:

   ·At page 105 of the appeal book, the second paragraph of its decision, the member omits all references in the Applicant's entry interview to the people smuggler who the Applicant said had been in charge of getting him out of Afghanistan and into Australia and how on the Applicant's account possessed all documents and made all arrangements.

   ·At appeal book page 107, first paragraph, the member omits those parts of the Applicant's supplementary statement which refer to his fear of the soldiers who boarded his boat on arrival in Australia, of people in uniform, of his belief he was in a prison (appeal book page 76).

   ·At appeal book 107, second paragraph, the member failed again to refer to all of the material in the Applicant's written submissions which seek to explain why the Applicant presented as he did at the entry interview, the inability of the adviser to obtain copies of this interview.

   ·At page 107, second full paragraph, the member further fails to refer to the material in the Applicant's written submissions (appeal book page 97) about the use of Hazaras as mine clearers, a claim made by the Applicant at initial interview before he could have been “corrupted” by others in the detention centre.

   ·At appeal book 107, the second paragraph again, it is claimed that there has been a failure by the member to refer to the Applicant's written submissions (appeal book 99) about the question of whether it is factually possible for the Applicant to be a Pakistani national - again a matter which, if considered, may have weighed in favour of the Applicant.

8. By way of general submissions it was claimed for and on behalf of the Applicant that the RRT having regard to the matters referred to in the preceding summary has drawn conclusions concerning alleged inconsistencies within the Applicant's evidence which was not open on the evidence and the conduct demonstrates an attempt to “catch out” the Applicant.  It was argued that there were similarities between the procedures followed and adopted by the RRT in this case with those which were the subject of observations made by Mansfield J in SAAG v Minister for Immigration & Multicultural & IndigenousAffairs (2002) FCA 547 at paragraph 36 referred to earlier in this judgment.

9. Further detailed submissions were later made by the Applicant in written submissions filed 5 May 2003 relating to the issue of bias as part of what is now described as jurisdictional error following the High Court decision in S157.  Those submissions may briefly be summarised as follows:

   ·The RRT member demonstrated a closed mind: In his attitude during the hearing, his selective use and reference to material before it, the drawing of adverse inferences based on assumptions which appear to have no basis in the evidence, his misuse of the hearing as nothing more than a chance for “puttage” to the Applicant and his failure to acknowledge the role of the hearing as a de novo review on the merits, designed to make the correct and preferable decision (see SBAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 79 per Merkel J at paragraph 7).

   ·The incorporation of significant parts of a decision which bears no relationship to the Applicant supports an inference that the RRT was simply “going through the motions”.  Relying on the similar material referred to earlier in this judgment it was submitted that there was sufficient basis for a conclusion that there was apprehended bias. 

10. I note the test for actual bias referred to in the decision of the High Court in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 where the Court states at paragraph 72 the following:

    “72 The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal [23] and Johnson v Johnson [24]. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.”

11. The Court was further referred to what is described as a test for apprehended bias in re Refugee Review Tribunal, re: Ex parte H (2001) 179 ALR 425 where the High Court states at paragraphs 27 and 28 the following:

    27The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided [7]. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.

    28Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

12. Further criticism was made of the RRT decision, and in particular it was argued that the member was prepared to draw adverse inferences on the basis of:

    ·Conclusions formed from material not articulated or referred to in the following passage:

    “At the hearing, the Applicant said his father produced 150 ser of almonds in a good year.  He initially stated that his father produced the same quantity of almonds last year and then stated that he only produced 80 ser.  He said that although the drought has been going on for several years, his farm had a well.  His evidence in regard to agricultural production during the drought was both contradictory and inconsistent with country information from an independent source and, in the circumstances, the Tribunal is not satisfied that the Applicant was in the area he claims to have lived all of his life.” (Court Book page 115)

    ·Assumptions based on material not articulated or referred to and not justified on the evidence which is referred to in the following extract:

    “One of his core claims is that the Taliban recruited Hazara men.  As mentioned above, he said father told him not to go to the mosque, although he contradicted that by stating he subsequently studied at that venue.  There is no reason to doubt that such conscription was a random event, even in that case, it most unlikely that the Applicant could have avoided it in an area that appears to have constantly patrolled by the Taliban.  It is also odd that the Taliban did not take his brother when they found the Applicant was not at home, particularly as they were searching for conscripts and had the strength to detain his father.  Similarly, it is strange that they did not search his house when they returned a second time specifically to find him.  Given the nature and significance of that aspect of the claim, the Tribunal does not believe that he would have been overlooked mentioning the Taliban visits and the beating and detention of his father at the entry interview even if he was tired and thirsty if, in fact, such incidents had occurred.  In considering the claim that he was the specific target of Taliban conscription efforts, the Tribunal is satisfied that the Applicant has concocted the accounts of attempt to forcibly recruit him and the assaults on family members.” (emphasis added) (Court Book page 115). 

    It was agreed that the phrases “constantly patrolled by the Taliban” and “odd that the Taliban did not take his brother” and “strange that they did not search his house” did not have any basis in fact on the material before the RRT.

    ·Assumptions based on material not articulated or referred to and not justified on the evidence which is referred to in the following passage:

    “It is apparent to the Tribunal that the Applicant’s knowledge of the area of Jaghuri and the practices of the Taliban has increased since his arrival, and it is satisfied that he has learned that information while he has been in the IDC, rather than gathering it by his own experiences.  The Tribunal is not satisfied that the Applicant has been in Afghanistan or that he is a national of that country.  In arriving at that conclusion, it notes that the linguistic analysis that commissioned by DIMA concludes that “the dialect/language variant appears to be most similar to that of Pakistan, Quetta.  Another possibility, although somewhat less certain, could be Afghanistan, Central region.”  The analysis is not material to the Tribunal’s decision as the expertise of that analyst is insufficiently established.  However, it suggests that the Applicant has been in Pakistan and is consistent with the country information that indicates that Quetta is a centre for Hazaras, many of whom migrated from Afghanistan and many of whom are Pakistani nationals.” (Court Book pages 115 to 116)

    It was submitted that in the context of that paragraph the Applicant's knowledge of the area of Janghuri has increased since his arrival without referring to what knowledge he failed to display originally and displayed later.

13. Contradictions were highlighted in the RRT's decision-making which appears at appeal book page 116.3 where the member states linguistic analysis is “not material to the tribunal's decision”, but then goes on to make a specific finding that the analyst “suggests that the Applicant has been in Pakistan and is consistent with country information indicating Quetta is a centre for Hazaras”.

14. Further criticism was made on the reliance by the RRT upon country information claimed by the Applicant to be “flimsy”.  It was otherwise argued the member did not have a sufficiently open mind to ask further questions about the country information.  Instead, it was argued the member focussed exclusively on alleged contradictions between the Applicant's evidence and one piece of country information (in respect of the drought, which it was argued is not in fact contradictory at all), and it is said made findings from a substantially inaccurate recital of the Applicant's claims using broad and unsubstantiated assumptions.

1. During the course of submissions made at the hearing on 19 September 2002 the issue of what has been described as a “cut and paste” approach to the decision and reference to matters that clearly are not related to the Applicant may amount to what counsel for the Respondent described as “sloppiness” but this was not the same as “lack of bona fides”.  Lack of bona fides requires more than mere sloppiness it was submitted.

2. In the Respondent’s written submissions it was submitted that a lack of bona fides cannot be established in the way the Applicant has sought to establish it in the present case.  Bad faith it was submitted is not just a matter of poor execution or poor decision making.  Counsel for the Respondent also referred to paragraph 24 in the decision of the Federal Court in NAAG v Minister for Immigration & Multicultural & Indigenous Affairs.

3. It was submitted by the Respondent that the RRT was entitled to come to the conclusion it did and to prefer the evidence it did.  The RRT was not obliged to make any reference to any specific items of evidence whether they supported the Applicant’s claims or not.  It was submitted that the RRT was not obliged to accept all or part of the Applicant’s claims uncritically and was entitled to test the veracity of claims (see NAJJ v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 11 at paragraphs 13 and 14, NAFG v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FAC 1151 at paragraph 8).

4. It was submitted that the Applicant’s submissions regarding lack of bona fides essentially consist of a series of complaints about merits which could properly be described as errors of fact and otherwise assertions from the Bar Table of a lack of bona fides.

5. It was submitted that the RRT’s task is to satisfy itself whether there is a well founded fear of persecution.  That process requires the delegate to make findings as to primary facts, identify the inferences which may properly be drawn from the primary facts as found and then apply those facts and inferences to an assessment of the “real chances” effecting the Applicant (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294.5 per Kirby J).

6. The selected extracts from the hearing whether taken individually or cumulatively do not establish that the RRT did not exercise its power in a bona fide manner.  Detailed submissions were made in writing in an outline of the Respondent’s supplementary submissions filed

   
   

   14 November 2003 where in general terms it was submitted that the RRT did no more than embark upon its task of properly dealing with the allegations made by the Applicant and discharged its obligation not to accept uncritically those allegations.

7. It was further submitted by the Respondent that the other errors which clearly appear in terms of the wrong reference to parties other than the Applicant, and matters which are clearly inappropriate in this application are what might be described as “benign” errors and not matters of any consequence to the RRT findings and decision. 

   
   

   They should therefore not provide a basis for judicial review according to the Respondent’s submissions.

8. The Respondent in its further submissions filed 21 May 2003 submitted in the light of the High Court decision in S157 that there is no jurisdictional error.  It was further submitted that not all errors will result in the decision not being a decision under the Act.  It must be an error going to the jurisdiction of the decision-maker.

9. In relation to the issue of bias, again it was submitted that when dealing with actual bias the basic principles of law must be observed.  It was further submitted that the RRT’s reasons are to be read fairly and “not to be construed minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang).  It was submitted there is no breach of natural justice in the present application.

10. The Respondent submitted that when dealing with actual bias the Court is not required to find an intentional state of mind.  It was submitted that “bias may be subconscious provided it is real” (see Minister for Immigration & Multicultural Affairs v Jia).  I was referred to the decision of Burchett J in Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR where His Honour referred to a finding of bias being a “grave matter” and further states, “It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice if it were to be seen as other than exceptional”.

11. It was further submitted that the Applicant’s submissions had misconceived the role of the RRT by referring to the hearing as being a chance for “puttage” as the RRT using its accumulated knowledge conducts the enquiry in a way where it can inform itself of certain issues and determine the way it puts questions to an Applicant before it.  The Applicant in challenging the RRT decision should establish that it acted on any opinion without giving the matter fresh consideration in the light of the facts and arguments relevant to the particular case.  The findings of the RRT were based on facts of the particular case and it was entitled to reach its decision that it was not satisfied the Applicant had not been in Afghanistan given what is described as contradictory and inconsistent evidence about agricultural production in Afghanistan during the drought and the finding that the Applicant’s account of Taliban attempts to conscript him were concocted together with its satisfaction that the Applicant’s knowledge of Jaghuri area and the Taliban had been learned whilst in Australia.

12. In relation to apprehended bias a number of well known authorities were referred to and it is sufficient to note the decision of the High Court in Webb v The Queen (1994) 181 CLR 41. The Respondent submitted that there is no basis upon which the Court could conclude that there is apprehended bias.

13. It was submitted that the migration agent acting on behalf of the Applicant had the linguistic report prepared by Eqvator.  It had been submitted to the RRT that the report should not be treated as the reason or part of the reason for refusing the Applicant a protection visa and reasons were given that in submissions (Court Book 92-93) in its findings the RRT held that the analysis was not material to its decision “as the expertise of the analyst is insufficiently established”. 

    
    

    The Respondent then noted that the submission on behalf of the Applicant about the need for access to documents about the language analysis misapprehends the reasoning in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 per Allsop J at paragraph 94. The application of the principles set out in NIB Health Funds according to the Respondent's submissions would require that the RRT disclosed to the Applicant the substance of a linguistic report even though it did not rely on it. The RRT did not disclose the report. The Applicant had the opportunity to comment and did comment on it. The RRT held the language analysis was not material and in doing so said in effect that it was not able to be relied upon. Accordingly, the principles of natural justice did not require the disclosure of material, which went to reliability of evidence which, was found by the RRT to be not material to its decision.

Reasoning

1. In my view the submissions on behalf of Respondent in relation to the linguistic report are clearly correct.  There is no basis for jurisdictional error.  It simply fails to disclose material which in any event was found not to be material to the RRT decision.

2. I have indicated the general principles to be applied in relation to jurisdictional error.  A great deal of time and effort has been devoted to this matter to a careful and indeed sometimes minute analysis of the RRT’s reasoning.

3. I accept that it is not appropriate for a court, upon judicial review even in the light of the somewhat broader notion of jurisdictional error since the High Court decision in S157 to analysis in great deal all the reasoning of the RRT’s decision.  Reference to the tapes and extracts of transcripts whilst perhaps providing some basis for what might be described as a grievance concerning the nature and manner in which questions were asked of the Applicant do not in my view provide a sufficient basis where it could be said that the jurisdictional error has been established.  It is not for the court to undertake a minute analysis of the RRT’s reasoning but rather the reasons should be read fairly – (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang).

4. However it is a matter of concern to the court that in present case it is common ground that the RRT has effectively undertaken either an editing process or incorporated into its reasons for decisions matter that are completely irrelevant to the decision before it.  It is common ground that the RRT in reciting the particulars refers to the name of another individual not the Applicant and that under the heading “Background” refers to particulars that do not belong to the Applicant.  I accept for the present purposes the claimed mis-statement of facts referred to earlier in this decision in paragraph 18.  It is difficult to draw any conclusion other than that the RRT has simply used another decision which has resulted in the error.  The errors are conceded quite properly by the Respondent.

5. Whilst reference has been made to “cut and paste” it should not be thought in the present case there has been a ‘template’ judgment used in this matter.  Template judgments are sometimes used to ensure that the RRT refers to the relevant legislation and caselaw and does so in a consistent manner.  They are not be used in order to relieve the decision maker from proofreading decisions and ensuring that the facts inserted relate to the specific Applicant.  It is understandable that where there are such glaring errors as in the present case, suspicions are aroused by parties who are subject to the decision and claims of jurisdictional error, which may involve actual or apprehended bias, are raised.

6. In my view there are a number of matters of concern in the manner in which the hearing was conducted though had it not been for the obvious and blatant errors in the factual background it may well be that those errors would not necessarily be of a kind which would constitute actual or apprehended bias sufficient to set aside the decision.

7. There are matters which on a proper hearing of the tape and considering specific references drawn to the attention of the court by the Applicant do provide a basis for legitimate concern in assessing the issue of bias.  Whilst a number of the references may be dismissed as a ‘robust’ inquiry I am satisfied that a number of comments made by the RRT go beyond ‘robust inquiry’ and may provide a proper basis for apprehended bias particularly when combined with the factual error both in the name and background of the Applicant as set out in the reasons for the RRT decision.  In the particulars which have been filed by the Applicant on 22 October 2002 the following references are matters of concern:-

   “Tape 1

   72 minutes:  In relation to the Applicant’s whereabouts when the Taliban came looking for him, the Tribunal Member rather sarcastically asks, “did you run away to the shrine in the mountain or did you just have the good luck of being there at the time?”

   80 minutes:  the member suggested to the Applicant that he may be an Afghan who has lived in Pakistan and that he could still be a refugee but it would be “a more convincing story than the one you’ve got”.

   81 minutes:  the member expresses the idea that the Applicant is eighteen and because “18 years olds are in the thick of it in Afghanistan” he cannot be ignorant of things. 

   Tape 2 

   34 minutes: the member asserts that Afghans are “very alert”, that they need to be because their life could be in danger, “even when very young”.  Then without receiving a response remarks, “you are very ignorant of things that I would expect you to know and even if you were very young and as you say, illiterate”.

   39 minutes: the member states the Applicant has presented a “common story” of being Afghan, “illiterate and not knowing anything.”

   41 minutes: in relation to the Applicant’s age the member remarks Australia is “full of migrants that came at the Applicant’s age.”

   42 minutes: the member continues that “it is not enough to say that I am young and I am here so I must be a refugee.”

   43 minutes: “it is easy to add to your knowledge why you are in the detention centre there’s letters with maps”

   47-48 minutes: In response to the Applicant’s request for the Tribunal member to ask him more questions to verify he Afghanie the member replied that “it is pointless to ask questions about landmarks, maps come out of detentions centres.”

8. In my view it is the regrettable combination of the obvious errors in the name and background of the Applicant and the manner and tone of questions asked which have been referred to in the Applicant’s particulars from the tape recording which provide a sufficient basis of jurisdictional error and which applying the relevant authority at least should satisfy this court that there is a basis for apprehended bias. 

   
   

   In the present case I am further prepared to accept having regard to the extracts to which I have referred that there is sufficient to conclude actual bias.

9. The RRT must conduct its enquiry in an independent and impartial manner.  Whilst it is understandable that there would be robust questioning in cases of the present kind I am satisfied that failure to accurately refer to the details relevant to this Applicant combined with the matter and nature of the questions asked at the very least establishes an apprehended bias which constitutes breach, a denial of natural justice and thereby provides a basis for jurisdictional error.  In my view it appears clear on the material before me that the RRT did have closed mind in this matter and gave unsatisfactory reasons for not wishing to undertake any further proper evaluation of the material before it.  Its production of reasons for decision which contain such blatant errors tend to indicate an attitude which in this case is aptly described by the Applicant’s Counsel as “going through the motions”.  I am satisfied a fair minded lay observer might reasonably apprehend that the decision maker did not bring an impartial mind to the resolution of the questions before the RRT.

10. In reaching the conclusion that there has been jurisdictional error I do not find that all the matters raised by the RRT were inappropriate or indeed that it was duty bound to consider each and every minute issue raised by the Applicant.

11. However, I do not accept the errors made in the present case can be dismissed as simply “sloppiness” as suggested by the Counsel for the Respondent nor do I find that the lack of bona fides in the present Application can properly be regarded as simply poor execution or poor decision making.  It is fundament in my view to accurately record the name and background details of an Applicant and to then fairly embark upon the task in a manner which could not be said deny natural justice by virtue of bias.

12. For those reasons in my view the orders should be made as follows:

    (1)The decision of the Refugee Review Tribunal dated 22 October 2001 be set aside.

    (2)The matter be remitted to the Refugee Review Tribunal to be further determined according to law by a differently constituted Tribunal.

    (3)The Respondent shall pay the Applicant’s costs and disbursements to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules up to and including 12 April 2002 and thereafter to be paid pursuant to Rule 21.10 of the Federal Magistrates Court Rules 2001.  

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  8 January 2004