S440 of 2002 v Refugee Review Tribunal [2004] FCAFC 282

FEDERAL COURT OF AUSTRALIA

S440 of 2002 v Refugee Review Tribunal [2004] FCAFC 282 MIGRATION – whether bias or apparent bias Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

APPELLANTS S440 of 2002 -v- REFUGEE REVIEW TRIBUNAL and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD966 of 2004

WILCOX, RYAN & MERKEL JJ

4 NOVEMBER 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD966 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN: APPELLANTS S440 of 2002

Appellants

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

JUDGES: WILCOX, RYAN & MERKEL JJ

DATE OF ORDER: 4 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondents costs, to be taxed in default of agreement. 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 NSD966 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN: APPELLANTS S440 of 2002

Appellants

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

JUDGES: WILCOX, RYAN & MERKEL JJ

DATE: 4 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT: 1 The appellants, being a husband, wife and their two infant children, have appealed to a Full Court against the orders of the primary Judge (Emmett J) discharging an order nisi in the nature of a writ of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal ("the RRT") of 26 February 2001. The RRT determined to affirm a decision of the delegate of the second respondent to refuse to grant protection visas to the appellants. 2 The appellants are citizens of Sri Lanka of Tamil ethnicity. They claim to have a well-founded fear of persecution on the ground of their Tamil ethnicity or imputed political opinion if they returned to Sri Lanka. The primary Judge ([2004] FCA 696) carefully considered and outlined the various grounds on which the appellants relied to contend the RRT's decision was vitiated by jurisdictional error, and set out in detail his reasons for concluding that the appellants' contentions should be rejected. 3 Counsel for the appellants argued that his Honour erred in three respects. The first ground of appeal related to his Honour's rejection of the appellants' claim that they were denied procedural fairness by the RRT. It is common ground that, for the appellants to succeed on that ground, it was necessary for them to establish that the primary Judge erred in rejecting the appellant husband's evidence that he had been misled by certain correspondence from the RRT. At [45]-[65] of his reasons the primary Judge set out his reasons for rejecting that evidence. 4 We are not satisfied that any error has been demonstrated in his Honour's reasoning. Nor are we satisfied that his Honour made any finding of fact, drew any inference or expressed any conclusion that was not reasonably open to him on the evidence. In our view the first ground of appeal has no merit. 5 The second ground of appeal related to certain matters taken into account by the RRT in deciding whether the Sri Lankan authorities or the LTTE might take a persecutory interest in the appellants if they were returned to Sri Lanka. The matters concerned the appellant wife's sister who had joined the LTTE in 1991. At [74]-[79] of his reasons the primary Judge explained why the matters relied upon were not irrelevant considerations. It is unnecessary for us to set out the detail of his Honour's reasoning as we have concluded that no error has been demonstrated and that this ground also has no merit. 6 The third ground of appeal involved the contention that certain remarks made by the RRT to the appellant wife during the hearing conducted by the RRT demonstrated that the RRT had closed its mind to her case and had already decided to affirm the refusal of protection visas. It was contended that the remarks gave rise to bias or an apprehension of bias. His Honour (at [80]-[90]) set out his reasons for rejecting the appellants' contentions. He concluded that a fair reading of the exchanges between the RRT and appellant wife, which were relied upon by the appellants, indicated to the appellant wife in clear terms the concerns the RRT had about her case and gave her a fair opportunity to respond to those concerns. His Honour regarded the exchanges as amounting to no more than a fair testing by the RRT of the appellant wife's case in a manner that was not overbearing. He considered that it was appropriate for the RRT to put to the appellant wife the tentative views it had formed on matters in issue in order to give her the opportunity to deal with them. 7 When the exchanges in question are taken out of context it is fair to say that the RRT expressed in stronger terms than were either necessary or prudent in the circumstances the difficulties which it perceived to stand in the way of the appellants. However, as was pointed out by Counsel for the Minister, the exchanges must be viewed in the context of the hearing of which they formed part. In that regard Counsel relied on the observations of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at 494 ([14]) that "a preliminary impression may be altered by a later statement" and the "hypothetical observer is no more entitled to make snap judgments than the person under observation". 8 The principles accepted by the parties as applicable to the present case were those stated by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 ("Ex parte H") at 435: 'Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.' 9 We have carefully considered the exchanges relied upon by the appellants and have concluded that, although they may fairly be characterised as a "vigorous testing of the evidence and frank exposure of its weaknesses," they were not presented in a manner that was overbearing or intimidating. Rather, quite unlike what happened in Ex parte H, the RRT was polite, requested responses to its concerns about the evidence and allowed the appellant wife to respond to those concerns. Further, after hearing the appellant wife's evidence, the RRT heard the appellant husband's evidence which traversed some of the same matters as had been raised by the RRT with the appellant wife. At the conclusion of the hearing the RRT stated it would consider all of the evidence it had received. 10 In our view when the RRT requested the appellant wife's responses to its concerns it was affording her an opportunity to address the views it was frankly exposing to her. When the exchanges relied upon are viewed in context we do not consider that the RRT had closed its mind to the appellant wife's case. Nor do we consider that a properly informed lay observer might readily infer that there was no evidence that the appellant wife could give which could have changed the RRT's views in relation to the matters the subject of the exchanges about which complaint has been made. 11 For the above reasons the appeal is to be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.