Ferati, Besim v Minister for Immigration & Multicultural Affairs [1998] FCA 1709

FEDERAL COURT OF AUSTRALIA MIGRATION – appeal against refusal to grant protection visa – whether actual or reasonable apprehension of bias of Refugee Review Tribunal member – where member published home page on Internet which included a statement that applicants for refugee status are often untruthful Migration Act 1958 (Cth) s 476(1)(f) Eshetu v Minister for Immigration (1997) 71 FCR 300 applied The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 applied Re JRL; Ex parte CJL (1986) 161 CLR 342 applied Vakauta v Kelly (1989) 167 CLR 568 referred to Webb v The Queen (1994) 181 CLR 41 referred to

BESim ferati v the minister for immigration and multicultural affairs

no. vg 726 of 1997

heerey j

23 december 1998

melbourne

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 726 of 1997

BETWEEN: besim ferati

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULtuRAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 23 december 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The matter be remitted to the Refugee Review Tribunal differently constituted for determination according to law. 2. The respondent pay the applicant's costs, including reserved costs.

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 VG 726 of 1997

BETWEEN: besim ferati

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULtuRAL AFFAIRS

Respondent

JUDGE: HEEREY J

DATE: 23 december 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT The applicant seeks review of the decision of the Refugee Review Tribunal ("RRT") constituted by Dr Rory Hudson made on 19 November 1997 affirming the decision of a delegate of the Minister to refuse him a protection visa. The applicant is a national of Yugoslavia (Serbia/Montenegro). He is an ethnic Albanian Muslim born in the province of Kosovo in 1967. He arrived in Australia on 8 August 1996 and applied to the Department for a protection visa on 6 February 1997. The decision of the delegate rejecting that application was made on 1 April 1997. The applicant asserted that he faced persecution upon return to Yugoslavia as an ethnic Albanian and because of his political opinion as imputed from: (i) his association with an Albanian Independence Movement and the Democratic League of Kosovo ("LDK"); (ii) his suspected involvement in bombings at various Serb police stations in Kosovo; and (iii) his visit to his brother Qemajl who had fled Yugoslavia in 1986 and come to Australia. There is an unusual feature of this case which makes it unnecessary to review in any detail the evidence which was before the RRT. Suffice it to say that the RRT found that it was at least arguable that any Albanian in Kosovo of the applicant's age faced a real chance of persecution by reason of race or nationality. This was so whether or not such a person had actually been involved in political activity. However the RRT concluded that Albanians did not face a real chance of persecution in Yugoslavia outside Kosovo. The RRT found that Albanians could live safely in Belgrade and that the applicant had not shown sufficient reason why it was not reasonable to expect him to relocate to Belgrade. In the course of its reasons it remarked that the applicant "was not a convincing witness" and "was noticeably evasive in answering difficult questions". The feature I have mentioned arises out of Dr Hudson's home page on the Internet which he published on 21 October 1997. On the home page Dr Hudson speaks of his family background, education and travels. He says that from 1988 to 1993 he worked in the Human Rights Branch of the Attorney-General's Department in Canberra. He there became involved in refugee issues, including being the Attorney-General's representative on the Determination of Refugee Status Committee. Although the work in the Attorney-General's Department suited him very well, he found that "after many years in the Commonwealth Public Service I was chafing at the system of bureaucracy, the lack of independence, the lack of initiative, the political interference, the patronage and favouritism." He saw an advertisement looking for lawyers to work in Hong Kong on a voluntary basis to assist Vietnamese asylum seekers. In 1992 he worked on this project for five months, using his long service leave and recreation leave. Upon his return to Canberra he applied for and was appointed to a position in the newly formed RRT. He then says this about work at the RRT: "Working at the Refugee Review Tribunal is rewarding in many ways. One is independent and able to use one's critical faculties to accomplish something that is worthwhile, giving protection to people in need and, one hopes, ultimately promoting the observance of basic human rights throughout the world. Regrettably, the RRT does not often get the credit it deserves. When we find a person to be a refugee, we are criticized for being too soft; when we refuse an applicant, others complain that we are biassed against refugees. But it's not like that. I think that all of my colleagues try conscientiously to reach the decision which is right. We try to avoid preconceptions one way or the other. When I was first appointed, a colleague who shall remain nameless said to me, 'Let 'em all in, Rory!'. But while I would like to let in to Australia at least 95% of the applicants who come to us, who are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life, it's not as simple as that. The Government has a fixed quota of places for refugees both onshore and offshore every year. Therefore, for every person in Australia one finds to be a refugee, who is thus able to remain in Australia, another person overseas, also in deep distress, misses out. So it would not be right to find an applicant to be a refugee if they were not truly in need of protection. This means that we have to make decisions which are not easy and not pleasant to make. But it has to be done. We work with dishonesty and corruption on all sides: foreign governments who practise the most abhorrent forms of cruelty against their citizens, immigration officials bent on keeping out as many people as they can irrespective of need; other parties who in my present position I had better not mention, applicants who weave webs of lies, lawyers and migration agents who prey on them to rip off what little money they have. In these sordid surroundings, it is, I firmly believe, only the RRT and the courts (and, to be fair, a small minority of honest lawyers and migration agents) who stand up for decent values and who honestly seek to do what is right." (Emphasis added) There follows a great deal of material about his views on various matters and particularly philosophy. A later version of the home page has a passage: "Various items on this page have had to be deleted recently due to my position as Member of the Refugee Review Tribunal, and will remain deleted for the duration of my holding that position". Counsel for the applicant submitted that this publication of Dr Hudson's views amounted to actual bias: Migration Act 1958 (Cth) s 476(1)(f). I do not think it shows actual bias in the sense of bias held by Dr Hudson against this particular applicant. However there is in my opinion a clear case of apprehended bias. As such there was a failure to act accordingly to substantial justice: s 420(2)(b), Eshetu v Minister for Immigration (1997) 71 FCR 300. Counsel for the Minister did not contend that apprehended bias, if established, would not be a ground for review. Dr Hudson has published to the world a view that applicants for refugee status, as a class, are likely to be untruthful. Literally of course that does not deny the possibility that some asylum seekers are truthful. But no asylum seeker could reasonably be expected to accept as fair a decision-maker who has already indicated a predisposition to regard asylum seekers as untruthful. An applicant would regard him or herself as starting behind scratch. Fact finding in refugee cases is a difficult and sensitive task, with profound, possibly fatal, consequences if a wrong decision of fact results in the application being refused. Decisions of fact cannot be overturned by the Court. Thus the RRT, whose decisions on fact are so important to applicants (and of course the Minister also, as well as the Australian community) cannot operate so as to create "a substantial distrust of the result … in the minds of reasonable persons": The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 per Dixon CJ, Williams, Webb and Fullagar JJ. The kind of bias exhibited here is through "interest or preconceptions existing independently of the case": Re JRL Ex parte CJL (1986) 161 CLR 342 at 372 per Dawson J. Suspicions of bias of this kind where there are grounds for it may well be ineradicable: ibid. Dawson J's observation was also cited by Toohey J, with whom Brennan, Deane and Gaudron JJ generally agreed, in Vakauta v Kelly (1989) 167 CLR 568 at 587. See also Webb v The Queen (1994) 181 CLR 41 at 74-75 per Deane J. I do not think there is room for the application of any bane and antidote theory. Dr Hudson has expressed compassion for refugees and manifested that in a practical way by his work in Hong Kong. But his critical role in either believing or disbelieving an individual applicant is hopelessly compromised by his published preconception that applicants often "lie through their teeth" and "weave webs of lies". The matter will be remitted to the RRT differently constituted for determination according to law. There will be an order that the respondent pay the applicant's costs, including reserved costs.