Vauu v Refugee Review Tribunal [2002] FCA 417

FEDERAL COURT OF AUSTRALIA

Vauu v Refugee Review Tribunal [2002] FCA 417

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 52 OF 2002

BETWEEN: VAUU

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

KIM ROSSER, MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 11 APRIL 2002

WHERE MADE: MELBOURNE

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 52 OF 2002

BETWEEN: VAUU

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

KIM ROSSER, MEMBER, REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: SUNDBERG J

DATE: 11 APRIL 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT BACKGROUND FACTS 1 The applicant claims to have left Iran in July 2000 after playing an instrumental role in an anti‑government uprising in his home town of Abadan. He says he is an active supporter of the Fedayeen‑e Khalq Organisation (Majority Faction) ("FKO"), an outlawed Socialist group that operates clandestinely in Iran. The applicant left Iran with two acquaintances who also claimed to have participated in the Abadan uprising. All three stowed away on a merchant ship. They were assisted to stow away by the applicant's cousin, who was a merchant seaman. I will call the applicant's acquaintances "the stowaways" and his cousin "the cousin". Upon arrival in Portland, Victoria, in September 2000 the applicant and the stowaways jumped ship and sought asylum. The cousin also sought asylum on the ground that he would face a well‑founded fear of persecution in Iran when it was reported that he had helped three activists escape. All four applications were rejected. The applicants sought review by the Refugee Review Tribunal. The review hearings of the applicant's and the cousin's cases were heard on consecutive days by the same Tribunal member, Mr Keher. The applicant appeared as a witness in support of the cousin's application, and then as applicant in his own review the next day. Mr Keher affirmed the decisions under review. The applicant and the cousin sought review of Mr Keher's decision by the Court. By consent both matters were remitted to the Tribunal. The stowaways' review hearings were heard by the Tribunal constituted by the second respondent ("Ms Rosser") who affirmed the decision of the delegate in each case. Pursuant to the remitter, the cousin's case returned to the Tribunal for a de novo hearing on 25 October and 1 November 2001. Ms Rosser was the member constituting the Tribunal. The applicant appeared as a witness on the cousin's review. On 18 December 2001 one of the Tribunal's case officers informed the cousin's representative that Ms Rosser would be hearing the applicant's case on remittal, and that she intended to delay making a decision in the cousin's case until she had heard the applicant's case. On 21 December the applicant wrote to the Principal Member of the Tribunal requesting that the Tribunal be reconstituted. The request was refused. THE APPLICATION 2 The applicant has applied under s 39B(1) of the Judiciary Act 1903 (Cth) for a writ directed to Ms Rosser prohibiting her from hearing his review application on the ground that a fair minded observer might reasonably apprehend that she might not bring to it an impartial and unprejudiced mind. See Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at 428‑429, 438. The apprehension is said to arise as a result of three matters. The first is that Ms Rosser has already heard, and been required to form a preliminary view on, the substance of the applicant's claim when he appeared before her as a witness in support of the cousin's case on 25 October and 1 November 2001. The second matter is that Ms Rosser's conduct during the hearing of the cousin's case indicated that she did not accept his evidence. The third is that since Ms Rosser has now heard three cases raising facts in issues that are substantially similar or identical to those in the applicant's case (namely the cousin's and the stowaways' cases), and rejected two of them (the stowaways'), "it is difficult to see how she can bring an open mind to the facts of the applicant's case". PROCEEDINGS IN THE COUSIN'S CASE 3 In support of the first two matters reliance was placed on passages in the transcript of proceedings in the cousin's case. The cousin gave evidence about having helped the applicant and the stowaways come to Australia. But for the discovery by others on the ship that he was helping them leave the ship in Portland, the cousin would have returned with the ship to Iran. He believed that assisting the applicant and the stowaways to leave Iran would be perceived by the authorities as a political act because those he assisted were being sought by the security services on account of their political activities. Ms Rosser asked the cousin: