FEDERAL COURT OF AUSTRALIA "T" v Minister for Immigration & Multicultural Affairs [1999] FCA 878 MIGRATION - application for judicial review of Refugee Review Tribunal decision refusing grant of a protection visa - applicant citizen of Tunisia - Tribunal made adverse findings about the applicant's credibility when he failed to demonstrate a standard of knowledge on certain issues that the Tribunal expected a person in his position to hold - whether manner in which Tribunal conducted hearing or its reasons for decision demonstrated actual or ostensible bias - whether Tribunal's unfair treatment of some of the applicant's evidence amounted to reviewable error - whether the Tribunal based its decision on facts which did not exist - whether facts relevant only to evaluating the credit of the applicant can be viewed as facts upon which a decision in "based" - proper approach when other material exists which justifies the Tribunal forming an adverse opinion of the applicant. Migration Act 1958 (Cth) ss 476(1)(b), 476(1)(e) and s 476(1)(f) Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71 distinguished Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556 applied Ngo Quang Thuat v Minister for Immigration & Multicultural Affairs [1998] FCA 1489 considered Abdalla v Minister for Immigration & Multicultural Affairs (1998) 51 ALD 11 cited Saeed Rangin v Minister for Immigration & Multicultural Affairs [1998] FCA 369 cited Kathiresan v Minister for Immigration & Multicultural Affairs [1998] FCA 159 cited "T" v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 993 OF 1998 MOORE J SYDNEY 30 JUNE 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 993 OF 1998 BETWEEN: "T" Applicant AND: MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE OF ORDER: 30 JUNE 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed with costs. 2. In the title of the proceeding, the applicant is to be referred to as "T". 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 NG 993 OF 1998 BETWEEN: "T" Applicant AND: MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE: 30 JUNE 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by "T" ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 26 August 1998. In an amended application for review filed in court on 11 March 1999 the applicant challenged the decision of the Tribunal on several of the grounds identified in s 476 of the Migration Act 1958 (Cth) ("the Act") namely, that the Tribunal's failure to inquire into certain material issues resulted in a failure to observe required procedures and to act in accordance with substantial justice and the merits of the case (s 476(1)(a) and s 420(2)(b)); the decision of the Tribunal was induced or affected by actual bias (s 476(1)(f)), (or additionally, by ostensible bias), and there was no evidence or other material to justify the making of the decision because the Tribunal based its decision upon the existence of facts which did not exist (s 476(1)(e)). 2 The applicant is a citizen of Tunisia. On 14 April 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): see s 36 of the Act. On 15 January 1998 a delegate of the Minister refused to grant a protection visa and on 22 January 1998 the applicant sought review of that decision by the Tribunal. After considering the circumstances of the applicant, the Tribunal affirmed the delegate's decision that the applicant was not a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: … the term 'refugee' shall apply to any person who; … owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it. 3 The substance of the applicant's case before the Tribunal was that he feared persecution if returned to Tunisia by reason of his political opinion. The applicant claimed that he had been actively involved with political groups in opposition to the government in that country. The applicant was assisted by a solicitor at the Tribunal hearing. He did not require the services of an interpreter as he is a qualified teacher of English. The applicant's account as detailed by the Tribunal 4 The decision of the Tribunal referred at length to the oral and written account of the applicant provided to the Tribunal and earlier provided to the Department for the purposes of the initial application. Where necessary the applicant's evidence or account will be discussed in greater detail later in this judgment. However it is convenient to set out now, by way of background, a brief summary of the Tribunal's account of what the applicant said at each stage of the application process. (a) Written submissions to the Department 5 In written submissions to the Department the applicant said that he first became interested in politics while at university in Tunisia in 1982. He described himself as a nationalist who believed in socialism at the economic level and, as he came from the south of Tunisia, was influenced by Libyan politics. At university he was a member of the "Progressive Nationalist Students", a group which was often criticised by the government. On graduation in 1987 the applicant joined the "Mouvement des Democrates Socialistes" ("MDS"), an opposition party. He became a secondary school teacher at a school in Tatouine, near the Libyan border, though because of his political activities he was only appointed a trainee teacher. At this time the applicant frequently visited Libya on behalf of the MDS to exchange information and build up contacts. This work was done in secret, as were his numerous overseas trips to meet with other progressive Mediterranean socialist parties as a representative of the MDS. As contact with foreign political parties was banned in Tunisia, this was a dangerous activity. 6 The applicant helped organise many pro-Iraqi, anti-American demonstrations in Tatouine during the 1990 Gulf War. He was subsequently, on four occasions in 1990 and 1991, questioned by police about his visits to Libya and his political activities, verbally abused and beaten. On the last occasion he was questioned he was told that he was an "undesirable person". In 1991 the Tunisian President announced an amnesty to allow undesirable people to leave the country and return as visitors for up to 3 months a year. The applicant then left Tunisia and returned each year to spend two months with his family, reporting to police on arrival and in relation to any internal movements. His role in the MDS at this time was limited, however he was kept informed about events within the party. 7 In September 1995 the applicant returned to Tunisia for a month and applied to study in Russia. While in Tunisia he became aware that the MDS leader, Mohammad Mouada, was preparing an open letter to the President criticising government policies. The applicant left for Russia prior to Mouada's arrest, after which the MDS was banned and a number of its activists arrested. The applicant became concerned that he would be at risk of arrest on return to Tunisia because of his links with Libya. He then obtained a new passport in Russia and a visa to study in Australia. He returned to Tunisia for one month to visit his family and then came to Australia in January 1997. He said that he had no problem leaving Tunisia at that time as the government tolerated "undesirable" people so long as they do not reside in Tunisia. 8 A further statutory declaration of the applicant was received by the Department on 13 June 1997. In this declaration the applicant said he had received a copy of a letter from the Commission of Secondary Education in Tatouine stating that his employment had been terminated because he had been tried in absentia and sentenced to 7 years jail. The charge against the applicant was based on his link to an illegal movement whose aim was to destroy the country through relations with a foreign power. The applicant had not kept the envelope in which the letter had been sent. The applicant also provided the Department with several Amnesty International reports, which included information about the jailing of Mouada and the unfair nature of his trial. (b) Oral submissions to the Department 9 At an interview with a Departmental officer the applicant repeated the substance of his account in his written submissions. However he added a number of details. The student political party he had belonged to believed in the unification of Tunisia and Libya. He had joined the MDS in 1987 because its policies were the closest to his political beliefs and because he needed a cover for his other activities. He was a secret member of the MDS and it was his role to build links with other countries. The MDS was a socialist organisation which believed in human rights. Problems with the MDS began only after Mouada's letter of criticism, intensifying in 1996 when the MDS was disbanded and its members pursued. The applicant never expected the authorities would learn of his membership of the MDS because he had been a secret member. 10 He had been advised to leave the country in 1991 because of his association with the MDS, but when questioned by the Departmental officer it said that he had left as he was of interest to the authorities because of his nationalist and unionist activities while at university. The Tunisian authorities were interested in people with links to Libya and he had had personal dealings with Libya and had exchanged political ideas. When he left Tunisia he became an "outside resident" of the country and had to report to the authorities whenever he returned from abroad, which was part of the normal procedure for all citizens returning from overseas. On one of his visits to Tunisia he was detained for a night because he had not left the country within the three month period allowed under the amnesty agreement. He was released because he was not of serious interest to the authorities at that time. 11 The applicant believed his name had been given to the Tunisian authorities by the Libyans in 1995, when they were negotiating with the Tunisian authorities for the release of Mouada, or in 1997 when President Ghaddafi visited Tunisia. He suggested that the Libyan authorities may have named him as a gesture of goodwill to the Tunisian authorities. The applicant was not aware that he had been charged with any offence or sentenced to prison before receiving the letter terminating his employment. This was not unusual given the secrecy in the Tunisian bureaucracy. (c) Written submissions to the Tribunal 12 In his application to the Tribunal the applicant said that university graduates in Tunisia are classified as "clean", "suspicious" or "highly dangerous" and their treatment on graduation varies according to their classification. His appointment as only a trainee teacher and in a remote area was a result of his being classified "suspicious" on graduation in 1987. 13 At the time of the 1991 amnesty towards "undesirable" people, the applicant was still categorised as "suspicious" but had not been formally charged with any offence. Many teachers left Tunisia to work elsewhere but the political activities of Tunisians working abroad were strictly controlled. The applicant had to return to Tunisia in 1995 before travelling to Russia. He did this despite the risks involved as he had been told that there were no formal charges against him in Tunisia. He entered Tunisia at this time on a passport he obtained abroad, bearing a slightly different name to the passport that he had used to leave Tunisia. He obtained yet another passport in a different name when he travelled back to Tunisia from Russia in 1996. 14 In relation to the MDS leadership, the applicant stated that some sources considered Ahmed Mestiri to be the leader of the party because he was its founder. However, Mestiri had been disqualified during the elections in 1986 and the MDS decided that Mouada should become leader. Mestiri remained as Secretary-General of the party (largely an honorary position) and in 1989 he was elected by the MDS as its election candidate in recognition of his contribution to the movement. The letter dismissing him from his job was genuine, and the Ministry of the Interior in Tunisia does not give details of suspects in cases which involve intelligence or collaboration with foreign powers. However these details are released to the institutions which employ the people concerned. The applicant had left for Australia as he was afraid of what might happen to him if he remained in Tunisia. (d) Oral account to the Tribunal 15 In view of the way the remainder of this judgment is structured, it is unnecessary to repeat the Tribunal's summary of the evidence given orally by the applicant to the Tribunal. The Tribunal's reasoning and conclusions 16 The Tribunal commenced its assessment of the applicant's evidence with the statement that it did not find the applicant to be a credible or truthful witness. The Tribunal variously described the applicant's evidence as unconvincing, contradictory, out of keeping with independent information, far-fetched and implausible. The Tribunal said that it did not accept that the applicant was an active member of the MDS after leaving university and noted that it had reached this conclusion because of the discrepancies between information about the MDS provided by the applicant as opposed to information from independent sources. The discrepancies included evidence given about when the party was formed, when it gained legal recognition, leadership of the party, and the applicant's lack of knowledge of the requirement that political parties needed to gain 5 per cent of the vote in the 1981 elections in order to gain legal recognition. The Tribunal stated in relation to this and other information about the party that if the applicant had been as involved in the MDS as he alleged, he would have been aware of these matters. 17 The Tribunal rejected the applicant's claim that he had been a "secret" member of the MDS, as such a status was out of keeping with independent evidence before the Tribunal suggesting that the MDS is the largest secular opposition party in Tunisia and operates openly and legally. None of the sources consulted by the Tribunal suggested that the party had a secret wing or that it would need to operate in such a way. Furthermore, the applicant's claim that he was an important member of the "secret" side of the MDS was at odds with his claim that he was never really trusted by the MDS because he had been a university student with links to a pan-Arabist student group. The Tribunal also rejected the applicant's claim that the MDS had close political links with Libya, as independent information before the Tribunal suggested that the MDS is a liberal, social democratic party that supports multi-party democracy with no suggestion of close links to Libya. 18 The Tribunal found the applicant's claim that he had represented the MDS at meetings with other parties in the Mediterranean region implausible, given his own statements about the party's lack of trust in him and the fact that he had never held an official position in the party. The Tribunal took the applicant's inability to name any of the parties involved in these meetings or to explain the nature of the meetings themselves as a clear indication that he had in fact never attended such meetings. The Tribunal also rejected the suggestion that since 1982 the applicant had been a member of a group called the "Union Progressiste Unioniste" (UPU), as the Political Handbook of the World consulted by the Tribunal made no mention of such a group. The Tribunal accepted that this source might not include the name of every group operating in Tunisia. However as the applicant had claimed that the UPU had many thousands of members and supporters, the Tribunal considered that the group would be relatively large by Tunisian standards and therefore publicly known. The Tribunal found it surprising that the UPU was not mentioned in the handbook consulted. 19 The Tribunal also did not accept that the applicant had been forced into semi-exile during an "amnesty" in 1991 because he was classified an "undesirable" person. The Tribunal stated that there was nothing in evidence before it to suggest that such an amnesty had ever occurred, and the nature of the alleged agreement was implausible in any event. Furthermore, the claim that he had been forced into semi-exile was irreconcilable with the claim that he remained an employee of the Ministry of Education until 1997. The Tribunal also rejected the applicant's account of having acquired three passports. 20 As the Tribunal did not accept that the applicant was a member of the MDS or the UPU, or that he was involved in building links with Libya on behalf of either party, it did not accept that the applicant had been tried in absentia for offences relating to these activities. Furthermore, none of the sources consulted by the Tribunal made any suggestion that people are secretly charged and sentenced for political crimes in Tunisia. Rather, all evidence suggested that such charges are made public. The Tribunal further held that the letter dismissing the applicant from his employment with the Ministry of Education was a fraudulent document concocted by or on behalf of the applicant. In conclusion the Tribunal stated: Given my findings on [T's] overall lack of credibility and my findings regarding his lack of significant involvement in any political party in Tunisia, I do not accept that he was involved in leading pro-Iraqi demonstrations in 1990 or 1991, nor that he was questioned by police as a result of this. Furthermore, even if I accept that these claims are true, it is now seven years after the event, [T] has not had any problems with the authorities since then and I do not consider there is more than a remote chance that these past events will cause him problems in the future 21 The Tribunal further noted: I believe that my investigations into political developments in Tunisia in recent times has given me sufficient information to reach the conclusions set out above regarding [T's] claims. It is true that [T] has some knowledge of Tunisian political events. However, he is a well-educated man and the mere fact that he has some knowledge of political events in his home country does not mean that he himself was involved in those events. And, as discussed above, many of his claims regarding politics in Tunisia were out of keeping with other information before the Tribunal. 22 I turn now to the submissions of the parties in the application for judicial review. Submissions 23 The first submission of counsel for the applicant was that the decision of the Tribunal was affected by actual bias. This was said to be apparent from the transcript and tape recording of the applicant's hearing before the Tribunal. The Tribunal, it was submitted, frequently interrupted the applicant, exhibited impatience and unnecessary sarcasm, showed unwarranted incredulity, made unfair comments about the applicant's supposed lack of knowledge of the MDS, and showed a closed mind to the prospect that the applicant was telling the truth and to his claims in general. Counsel submitted that such conduct manifested legal error of the type discussed by the Full Court in Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71, where the Tribunal's repeated drawing of extremely adverse conclusions and use of highly coloured language in rejecting the applicant's claims was said to demonstrate actual bias (per Burchett J). Counsel further submitted that the Tribunal generally conducted the hearing as a "quiz", rapidly asking questions about the MDS to which the applicant was required to provide "correct" answers. The Tribunal held preconceived views about the "correct" answers to its questions and if the applicant failed the "quiz" he would also fail in his application. This approach was similar to that criticised by Gray J in Kathiresan v Minister for Immigration & Multicultural Affairs [1998] FCA 159 where it was said that the Tribunal should not conduct its inquiry by setting a standard of knowledge it expects an applicant to have and then criticising the applicant when he or she fails to meet that standard. 24 Counsel for the Minister submitted generally that any particular matter relied on as showing actual bias must be considered in the context of the whole hearing: Sun (supra). It is not enough that a decision-maker display irritation, impatience or even use sarcasm during the course of the hearing: Sarbjit Singh v MIEA (unreported, Lockhart J, 18 November 1996); Sun (supra). Furthermore, the function of the Tribunal both to ask questions and evaluate answers means that it must conduct the hearing in a semi-inquisitorial way: Durairajasingham v MIMA (1997) 50 ALD 469. In conducting the hearing as it did, the Tribunal was simply seeking to perform properly its function and allowance should be made for the fact that it had the role of both cross-examiner and decision-maker. Counsel contended in oral submissions that the tone and method of the Tribunal in this case was not of the same order as that of the Tribunal in Sarbjit Singh (supra) where such conduct was held to not amount to actual bias. 25 Counsel for the applicant submitted that in the absence of a finding of actual bias, the Court could still find that the conduct of the Tribunal exhibited an apprehension of bias, a ground of review available as a matter of procedural fairness under s 476(1)(a) and s 420: see Ferati v MIMA [1998] FCA 1709 (Heerey J). Counsel for the Minister submitted that apprehended bias is not a ground of review (Bilgin v MIMA (1997) 149 ALR 281), and no concession was made in these proceedings of the same type made in Ferati (supra), where it was apparently conceded on behalf of the Minister that apprehended bias on the part of the relevant Tribunal member may be reviewed by a combination of ss 476(1)(a) and 420. 26 It was also submitted by counsel for the applicant that the reasons for decision of the Tribunal themselves demonstrated actual bias. This was said to arise in the way the Tribunal dismissed the entirety of the applicant's evidence that he was a member of the MDS, despite the detailed account of the history, philosophy and activities of the MDS given by the applicant at the Tribunal hearing. The same was said to arise from the Tribunal's dismissal of the applicant's evidence regarding the Progressive National Students. Counsel submitted that the applicant had never told the Tribunal that he was a member of a group called the "Union Progressiste Unioniste", which was the name that the Tribunal found was not mentioned in any of the independent sources. The applicant's evidence that the group was not active outside the university was consistent, it was submitted, with the fact that it was not mentioned in any of the sources consulted by the Tribunal. Furthermore, the Tribunal failed to check its independent information for any of the party names, such as "Progressive National Students", that it is claimed the applicant did in fact mention. 27 Counsel for the Minister responded that in rejecting the applicant's claims of involvement with the MDS, the Tribunal was influenced by other implausible evidence given by the applicant concerning his links with Libya and involvement in secret meetings with parties from other countries. The questioning and reasoning of the Tribunal was aimed at discerning whether the applicant had the knowledge one would usually associate with a person actively involved in the party, and such an approach was not one which evidenced actual bias. Counsel also submitted that in relation to the confusion surrounding the name of the student political party, the Tribunal's alleged failure to inquire into the other party names apparently referred to by the applicant at the hearing was irrelevant. That is, none of those parties were mentioned in any of the independent sources in any event. Counsel therefore submitted that neither this nor any other example complained of by the applicant in regard to the manner in which the Tribunal conducted the hearing provided a basis for alleging actual bias. 28 Counsel for the applicant also submitted that the Tribunal should have made inquiries into the authenticity of the letter from the Tunisian Ministry of Education referring to the applicant's termination of employment and the criminal charges against him before finding that it was "a fraudulent document concocted by or on behalf of [T]". The failure to make such an inquiry constituted an error under s 476(1)(a) and s 420. Counsel further submitted that this failure to inquire gave rise to a breach of natural justice as the applicant was not given an opportunity to reply to the allegation that the letter was fraudulent. Counsel for the Minister responded that from the time it was supplied at the outset of the application, the genuineness of the dismissal letter was in issue. This was evident from the delegate's decision and a statutory declaration submitted to the Tribunal by the applicant specifically addressing the delegate's findings in relation to the genuineness of the letter. The Tribunal questioned the applicant about the genuineness of letter at the hearing and further submissions in regard to it were made by the applicant's solicitor after the Tribunal hearing. However, no request was made on behalf of the applicant for its genuineness to be examined. Counsel submitted the Tribunal's conclusion that the letter was fraudulent cannot give rise to error on the ground of actual bias, failure to inquire or breach of natural justice. 29 After the hearing further written submissions were received by both counsel. Counsel for the applicant prepared a detailed critique of the impugned findings of the Tribunal by reference to the material and evidence on which they were based. The submissions set out the findings and sub-findings of the Tribunal by reference to which the applicant's challenge to the Tribunal's decision is, in part, made. The findings were: 1. That the Tribunal did not accept that the applicant was an active member of the MDS after leaving university in 1987. This finding was based on a series of sub-findings, namely (what the Tribunal said in its reasons is in quotes): · "[T] claims that the MDS was first formed in 1981" when the Tribunal found that the MDS existed prior to this date. · "[T] claims that the MDS was a legal political party from 1981" when the Tribunal found that the MDS did not gain legal recognition until 1983. · "[T] was also clearly unaware of the requirement that political parties gain 5% of the vote in the 1981 elections in order to gain legal recognition" when the Tribunal had asked whether there existed any "criteria" for the legalisation of political parties. · "[T] claims that party founder Ahmed Mestiri ceased to lead the party in 1986 when it was falsely alleged that he had been sentenced to prison and he was thus banned from participating in the elections held that year" when the Tribunal's view was that it was "obvious" that Mestiri led the MDS until 1989. · "[T] claimed that Mr Mestiri held the position of Secretary General from 1986 until after the elections of 1989, although he also claimed that the position of Secretary General was merely an honorary one" when information relied upon by the Tribunal contained no suggestion that Secretary General was merely an honorary post. · "Finally, he stated that Mr Mestiri is still a member of the MDS" where information before the Tribunal stated that Mestiri had resigned from the party in 1992. · "I also note that [T] was unaware of the circumstances of Mr Mestiri's detention in 1986 and I consider this a further indication that he was not deeply involved in politics at the time" and "When I asked what had led to Mr Mestiri's jailing in 1986, he claimed that Mr Mestiri was never actually charged with any offence" where the Tribunal's information stated that Mestiri was sentenced to four months jail in 1986 for leading an illegal protest for which he was pardoned in 1987. · "[T] claimed in his written submissions to the Department and during his Department interview that the MDS has been banned and its members were being pursued" where the Tribunal's information suggested that the MDS had been a legally recognised party since 1983 with ten seats in parliament since 1994 and no suggestion of having been banned or disbanded. · "[T's] claim that he was a secret member of the MDS is out of keeping with the other evidence before the Tribunal which states that MDS is the largest secular opposition party in Tunisia and operates openly and legally" where the Tribunal allegedly cut off the applicant's clarification of this and seized upon his use of the word "secret" repeatedly and in order to make it sound ridiculous. · "I find the claim that [T] would be selected to represent the MDS at [meetings with other parties in the Mediterranean region] implausible given the fact that he never held an official position in the party and his statements regarding the party's lack of trust in him. Furthermore, he was unable to name any of the parties involved in these meetings, nor the substance of the discussion which took place, a clear indication that he never attended any such meetings" where, although the applicant was unable to name the parties, he was not asked to give the substance of any discussion which took place at the meetings. · "I also note that [T] claims that he joined the MDS because there was no group or party pursuing the pan-Arabist or unionist cause outside the universities as pursuing such goals was against the Tunisian constitution" (this is said to be a misrepresentation of the applicant's evidence, that is, at no point did the applicant say that there was no group or party pursuing the pan-Arabist or unionist cause outside the universities). 2. The Tribunal's finding concerning the applicant's membership of the Progressive National Students (referred to as the "Unionist Progressiste Unioniste" by the Tribunal) in circumstances where, inter alia, the applicant had said that it was a movement only, and not a political party. 3. The Tribunal's rejection of the applicant's claim that he was forced into semi-exile based on sub-findings which included that no information before the Tribunal suggested that any "amnesty" under which "undesirables" were forced or encouraged to leave the country had been implemented and that government imposed exile is banned by the Tunisian constitution. 30 I turn now to consider the issues raised in the proceedings. Conclusion in the application for judicial review 31 It is convenient to start by saying that since the hearing and after written submissions were filed, the High Court gave judgment in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21. Various principles applicable to judicial review under s 476 of the Act developed in this Court founded on what was an erroneous understanding of the combined operation of ss 420 and 476(1)(a) of the Act, must now be disregarded having regard to the High Court's judgment. In the result the grounds that can be pressed by the applicant under s 476(1) are the allegation of actual bias and the contention that the Tribunal based its decision on the existence of facts which did not exist. I turn to consider these two issues. 32 The detailed critique of the Tribunal's reasons for decision and the evidence before the Tribunal (including the oral evidence of this applicant) undertaken by counsel for the applicant is relevant to both these issues. 33 I have twice listened to the entire tape of the Tribunal hearing (once when reading the transcript) and selected parts of it on several more occasions. I accept, as submitted by counsel for the applicant, that the Tribunal member had a propensity to cut the applicant off and that the tone adopted by her in her questioning and commentary was, at times, inappropriate. Counsel for the applicant characterised the tone as sarcastic though, for my part (and there is an element of subjectivity in any characterisation of tone in this way), I would have said it involved a measure of glibness that ought not intrude into a hearing of this type. On occasions the Tribunal member's response to what the applicant said involved what appeared to be slightly exaggerated incredulity. 34 I also accept that in its reasons the Tribunal dealt somewhat unfairly with some of the evidence the applicant had given. An example was the way it dealt with the applicant's account of when the MDS was formed. I accept the applicant's evidence could reasonably be taken to have been that it was formed in 1981. However, it was not fair of the Tribunal to reject in absolute terms the submission made on the applicant's behalf that the evidence of the applicant was equivocal. It was equivocal because his acceptance that the MDS had no existence prior to 1981 was qualified by the words "not really". That is, it did not really have an existence before 1981. The words the applicant used might have signified that he believed the MDS had existed in some qualified but unspecified way before 1981. It was only the way the Tribunal then reformulated, in an unqualified way, the equivocal answer that gave the applicant's evidence the appearance of certainty. 35 Another example of the way the Tribunal dealt unfairly with the evidence of the applicant concerned the applicant's evidence about the "legalisation" of political parties in 1981. The Tribunal asked the applicant what were "the criteria for legalisation" of political parties in 1981. The applicant identified four which he later agreed were "the most important things". His answer was not expressed to be exhaustive. He did not mention any requirement that the party secure 5 per cent of the vote in the 1981 elections. That, according to one independent source available to the Tribunal, was a criterion imposed by the President of Tunisia prior to the 1981 elections for official recognition (what official recognition means is not clear) after the elections. The minimum vote was not, indeed could not have been, a precondition for a party fielding candidates in that election. The Tribunal asserted that the applicant was clearly unaware of the requirement that political parties gain 5 per cent of the vote in the 1981 elections in order to gain recognition. That fairly emphatic conclusion is not justified, at least as emphatically as it was stated, on the evidence given by the applicant. 36 Another example of the way the Tribunal dealt unfairly with the evidence of the applicant concerned the question of what was the reason why Mestiri, the MDS leader, had been imprisoned in 1986. The Tribunal asserted that when it asked the applicant what had led to Mestiri's jailing in 1986, "he claimed that Mestiri was never actually charged with any offence". Both the use of the word "claimed" and the contents of the claim unfairly elevate the evidence given by the applicant to a level of certainty that plainly, in my opinion, was not justified by the evidence actually given by the applicant. The evidence was susceptible of a number of meanings including that what the applicant was saying was that Mestiri had been charged on, as counsel for the applicant submitted, "trumped up" charges. 37 The approach adopted by the Tribunal to the applicant's claim that he had been a member of a student group or party at university was also unfair. The applicant identified the group or party as, variously, "the Progressive National Students" (in a statutory declaration accompanying his application for a protection visa dated 10 April 1997), the "Union Progressive Party" and "L'Union des Estudients Progressists" (both in his oral evidence to the Tribunal). He did not describe it as the "Union Progressiste Unioniste". However, that was the name of the party the Tribunal searched for in the independent literature and could not find. The Tribunal's failure to find mention of that party, so named, coupled with the rejection of the applicant's other evidence as not credible, founded the Tribunal's conclusion that the applicant had not been a member of the party (as it had misdescribed it) at university. 38 It is unnecessary to address in these reasons in detail all the matters identified by counsel for the applicant in his critique of the Tribunal's reasons. Many, but not all, of the remainder reinforce the conclusion that the approach adopted by the Tribunal to the evidence of the applicant was not entirely fair or completely balanced. 39 The critical question, however, is whether the applicant has demonstrated that the Tribunal was biased in the way identified in the ground of review in s 476 of the Act. 40 Section 476(1)(f) states the relevant ground as being "the decision was … affected by … actual bias". The meaning of this expression was considered by Burchett J in Sun (supra)at 127: In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was … affected … by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic or approach. 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. 41 It is probable there is no material difference in the approach of North J in his analysis of this issue at 562-564. If, however, the indicia of bias are stated more broadly by North J than Burchett J then I would respectfully adopt the approach of Burchett J. His Honour's cautionary observations in the penultimate and the final sentences in the above passage are of considerable importance. Their importance is illustrated in the present proceedings. The role of the courts in judicial review of administrative action is a limited but significant one and manifestly limited when Parliament has expressly narrowed the scope of judicial review as it has in the Act. It is necessary to ensure that judicial review on an established ground, whether derived from statute or the common law, does not become a vehicle for review on a ground which is not available. It is to be emphasised that s 476 does not enable a decision to be challenged merely in the footing that it manifests a "disquieting process of reasoning": see Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 692 or that the reasoning is illogical: see Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1. 42 In the present case the critique by the applicant's counsel of the Tribunal's decision demonstrates that the evaluation of the evidence by the Tribunal leading to several of the significant findings of fact it made can be legitimately criticised. However it is important to recognise that even though the evaluation is amenable to criticism, it is a large step then to conclude that because the evaluation was flawed in the way exposed by the critique, the Tribunal member had prejudged the applicant's case and was unable or unwilling to decide it impartially. This is so even adding to the flawed evaluation of the evidence, the other matters concerning the conduct of the hearing which counsel for the applicant relied on to demonstrate bias. I am not satisfied that had the applicant answered questions differently the Tribunal would have been immune from reaching a conclusion favourable to the applicant. While the material relied on by counsel for the applicant to demonstrate actual bias reveals some flaws in the way the matter was approached by the Tribunal, it does not establish, in my opinion, that the Tribunal member was unable or unwilling to decide the application before her impartially. I am not satisfied that the Tribunal was biased in the way identified in s 476(1)(f). 43 It is now necessary to consider the ground relied on by the applicant and found in s 476(1)(g). That ground is "that there was no evidence or other material to justify the making of the decision" but it is, relevantly, made out only if the person who made the decision "based the decision on the existence of a particular fact and that fact did not exist": see s 476(4)(b). 44 The facts counsel for the applicant points to as facts the Tribunal based its decision on, are the facts I referred to earlier when I summarized counsel's critique of the Tribunal's reasons. To make out this ground it is necessary for the applicant to demonstrate that the facts did not exist and they were facts the Tribunal based its decision on. Ordinarily this issue arises in the context of primary facts that are directly relevant to the decision. That is, primary facts constituting the matrix of facts that would lead to one decision or another. An example under the Act where the decision was set aside because it was based on a fact of this type that did not exist is found in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11. However a fact may be a primary fact of the type I have just discussed and also a fact relevant to the credit of the applicant: see e.g. Saeed Rangin v Minister for Immigration and Multicultural Affairs [1998] FCA 369 where the decision was set aside because it was based on a fact which did not exist. 45 Further, a fact may be relevant only to the credit of the applicant. An example of such a situation arose in Ngo Quang Thuat v Minister for Immigration and Multicultural Affairs [1998] FCA 1489in which the Tribunal found that an applicant for a protection visa had not told a Departmental officer that he had attempted to escape from custody when in prison in his country of nationality. The applicant later told the Tribunal he had escaped from custody. The Tribunal relied on the fact that the applicant had failed to tell the Departmental officer of this event to reach an adverse conclusion about the applicant's credit. In fact, the applicant had told the Departmental officer of this event. The applicant demonstrated to the satisfaction of O'Connor J that this and another fact were facts the Tribunal based its decision on and were facts that did not exist. Other decisions of this Court concerning s 476(1)(g) are Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1, Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681, Pat Tai Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556, Deqing Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 and John Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271. 46 In the present case there are facts of a similar character as those considered in Ngo Quang Thuat (supra). That is, the Tribunal in the present case concluded that, as a matter of fact, certain things were said by the applicant when they were not said, or at least not said in the way formulated by the Tribunal. The applicant also relies on statements of the Tribunal that independent information available to it stated certain things when, in fact, those things were not stated or not stated in the way asserted by the Tribunal. 47 Accepting, for present purposes, that these various matters constitute facts the Tribunal relied on in reaching its decision and are facts that did not exist, it is necessary to consider whether they were facts on which the Tribunal based its decision. 48 The proper approach in assessing whether a decision was based on a fact was discussed by Black CJ in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. The Chief Justice said: If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision. Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review. 49 There are a number of aspects of the applicant's account that the Tribunal relied on in concluding that the applicant was not to be believed which were not matters criticized in the critique by counsel or are matters about which I do not accept the criticism as being of substance. They are the applicant's account of his secret membership of MDS, his overseas trips on behalf of MDS, the reasons for and the consequences of him leaving Tunisia in 1991 and the production of a document that was viewed as fraudulent. There was material before the Tribunal which founded the Tribunal's adverse conclusion about the applicant's credibility apart from the findings which I am presently accepting were findings of fact where the fact did not exist. This is significant for two reasons. First, it makes it difficult to say that the findings of non-fact were critical in the way discussed by Black CJ in Curragh (supra). However of greater significance is the requirement of s 476(1)(g) discussed by Lindgren J in Pat Tai Choi (supra) at 9. In issue in those proceedings was whether, in fact, the applicant had participated in a ceremony in 1983. His Honour said: I turn next to par 476(4)(b). For the purpose of that provision, the decision-maker based his decision on the existence of a particular fact, that is, Mr Choi's participation in a Wo Shing Wo Triad ceremony in Macau in 1983. But it is not enough to establish ground (g) for Mr Choi merely to prove as an objective fact on the balance of probabilities in this Court that he did not participate in such a ceremony. Such proof notwithstanding, it would remain for Mr Choi to establish, in terms of par 476(1)(g), that there was "no evidence or other material to justify the making of the decision" by the decision-maker. Paragraph (b) of subs 476(4) is a "gateway" through which an applicant must pass before it is permissible for the Court to proceed to hold that ground (g) of subs 476(1) is established (see Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 (Wilcox J) at 519-521, and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC) at 221, 223 (per Black CJ). It suffices to say in terms of s 476(1)(g) that in my opinion the hearsay-on-hearsay material from the AFP was able to justify the making of the decision to refuse to grant the visa. 50 Carr J referred to these observations with approval in John Tuli (supra) at 12. 51 The combined effect of 476(1)(g) and (4)(b) is that an applicant must demonstrate not only that the decision was based on the existence of a fact which did not exist, but also that there was no evidence or other material to justify the making of the decision. The decision of the Tribunal was based on the rejection of the applicant's account of his experiences in Tunisia. There was material (referred to in paragraph 45) apart from any non existent facts relied on by the Tribunal, that justified the Tribunal forming an adverse opinion of the applicant's credit and rejecting the applicant's account. Accordingly the ground identified in s 476(1)(g) is not made out. 52 I dismiss the application with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 30 June 1999 Counsel for the Applicant: N Poynder Solicitor for the Applicant: Legal Aid Commission of New South Wales Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 March 1999 Date of Judgment: 30 June 1999