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: "what the situation would be if the people that you had assisted were not of any interest to the Iranian authorities for political reasons and have not been politically active. Would you still face problems with the Iranian government for political reasons, under these circumstances?" The question did not elicit a responsive answer. Nor did different formulations of the same question. Later Ms Rosser put to the cousin that his and the stowaways' claims that they were being sought in Iran for political reasons had been rejected by the Department and by the earlier Tribunal, and asked him to comment on that. He was not able to comment. 4 At the conclusion of the cousin's examination, Ms Rosser, speaking to his counsel, said: "the decisions in the two matters of the [stowaways] were decisions that I made, and as you're aware, the decision in relation to [the applicant] was made by Chris Keher, who made the previous decision in relation to [the cousin's] case. It would be my view that, regardless of who had made the decisions in the tribunal, that they would be matters that would have to be taken into consideration in making a decision in [the cousin's] case, insofar as he claims that he will be at risk of persecution in Iran because of the political profile of the people that he assisted to stowaway, and that factual findings made in relation to those people cannot simply be disregarded. Now, there's a matter of how much weight would be placed on them and of course [the cousin's] have shifted somewhat since the previous hearing, with these new witnesses and claims made in relation to imputed political opinion arising out of rumours that he'd assisted people who were involved with the Mujsheddin. That's a separate issue, but as long as he is still claiming that he would be at risk because the people that he assisted were wanted by the authorities in Iran arising out of their involvement in political activity, I don't see that it is possible just to completely disregard or have no regard to factual findings that were made in relation to those particular applications." Counsel for the cousin then asked for, and was granted, the opportunity to put written submissions on that issue. 5 Ms Rosser then interviewed the applicant. She asked him whether he had anything to say about the fact that when the cousin's case was before the Tribunal on the first occasion the cousin appeared to know nothing about the applicant's political activities. The applicant responded that he had been active in Iran in recent years with the FKO. Ms Rosser then put to him that the information in her possession indicated that the FKO had not been active in Iran for many years. The applicant responded that his political activities with the FKO started in 1976. Ms Rosser again put to the applicant that all the information she had seen indicated that the FKO is no longer active in Iran and has not been active for many years. The applicant replied that he had received a letter of support, apparently from a member of the FKO council. As I understand it, the applicant was saying the letter showed that the FKO was still active ‑ "otherwise they wouldn't have written such a letter in my support". 6 At the conclusion of the proceedings Ms Rosser said to the cousin's counsel: "One thing that was raised last week by you was information about whether the Fedayeen was active in Iran, and I do have some information about that which I'm happy to have faxed to you. This information comes from the Canadian Immigration and Refugee Board, who have utilised quite a number of sources who have said that the Fedayeen ‑ basically, all of the factions of Fedayeen are no longer active in Iran. Although the groups from overseas claim responsibility for things that happen, there is no evidence in fact that they are active. But I can get that sent to you if you're interested." Counsel said he would like a copy of the information. He added that he may want to dispute the country information Mr Keher relied on in the applicant's case. It appears he has been retained in that case. 7 It was submitted that the transcript material summarised above showed that Ms Rosser understood that she was required, in the cousin's case, to form a view on the substance of the applicant's claims concerning his affiliation with the FKO and his role in the Abadan uprising. It was then said that the evidence the applicant will give in his own case will be substantially the same as he gave in the cousin's case, and that Ms Rosser "has clearly already entered into the process of evaluating these claims because to do so is, in her view, a necessary step in determining [the cousin's] case". It was submitted that although Ms Rosser has not yet decided the cousin's case, a fair minded observer would reasonably believe that there is a possibility that she has already judged the applicant's evidence and credibility. THE FIRST AND SECOND MATTERS 8 I deal together with the contentions that a fair minded observer would reasonably believe that there is a possibility that Ms Rosser has already judged the applicant's credibility as a witness in relation to the evidence he gave in the cousin's case, being essentially the same evidence he will give in his own case, and that she has shown she does not accept the central plank of his evidence, namely his claim to involvement with the FKO. The cousin's case was that he was at risk because of the assistance he had given to the applicant and the stowaways. Although he had no relevant pre‑existing profile of his own, they did, and he would be "infected" by their FKO profiles. If the applicant and the stowaways had no such profiles, that would undermine the cousin's case. Hence Ms Rosser's interest in whether the applicant and the stowaways had such a profile. The transcript passages relied on, which I have either set out or summarised in pars 3 to 6, may show that Ms Rosser has formed a preliminary view about the applicant's claim to have a current FKO profile. But in my view that would not lead a fair minded observer to conclude that she might not bring an open mind to the applicant's case when she comes to hear it. 9 The Tribunal is not a court. Its proceedings are investigatory. It is an interventionist body. Consistently with its obligation to afford a fair hearing, it puts to an applicant information in its possession that is or may be adverse to the applicant's case or that is in conflict with material put before it by the applicant. The relevance of these considerations in a case such as the present was helpfully considered by Hayne J (with whom Gleeson CJ and Gummow J agreed) in Minister for Immigration and Multicultural Affairs v Jia at 463‑466. His Honour first made the general point that there can be no automatic application of rules developed in the context of judicial decision‑making to administrative tribunals (at 463). He then noted that the Tribunal's proceedings are less formal than those of a court, and that its procedures are not adversarial. He continued (at 464): "The decision‑maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up 'expertise' in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment." Later (at 466) Hayne J said: "In the case of a court, it will usually be self‑evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision‑makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an 'expert' tribunal assumes that this will be done. … It is critical, then to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision‑maker. The application of the rules requires consideration of how the decision‑maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision‑maker." His Honour concluded his judgment by saying (at 467): "Once it is recognised that there are elements of the decision‑making process about which a decision‑maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly." 10 In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 426‑427 Gleeson CJ, Gaudron and Gummow JJ adopted what Hayne J had said in Jia. After observing that it may be better in the case of administrative proceedings held in private (as the proceedings of the Tribunal are) 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 (rather than by reference to the fair‑minded lay observer), their Honours said (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 … 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." In that case the Court concluded that a fair‑minded lay observer or a properly informed lay person might well infer from the Tribunal member's constant interruptions of the applicant's evidence and the constant challenges to his truthfulness and to the plausibility of his accounts of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. Thus the case of apprehended bias was made out. 11 In the cousin's case Ms Rosser put to the applicant two matters about which she had concerns. One was that the cousin appeared to know nothing about the applicant's political activities when the cousin's case was before the Tribunal on the first occasion. The other was that she was in possession of country information indicating that the FKO had not been active in Iran for many years. Apprising the applicant of her concerns, so as to give him the opportunity to deal with them, does not give rise to an apprehension of bias. Cf Ex parte H at 435 quoted at par 10 above. It does not appear from the transcript that Ms Rosser questioned the applicant in a manner that discomposed him, or even that she pursued him vigorously. She did no more than point out, as it was entirely proper and fair for her to do, that she was in possession of information that cast doubt on his claim to a political profile. 12 After the applicant's evidence had concluded, Ms Rosser addressed counsel for the cousin, who is to assist the applicant on the hearing of his review, and offered to provide him with copies of the information showing that the FKO is no longer active in Iran. Counsel replied that he would like to see the information because he might need to provide the Tribunal with some evidence in the applicant's case in order to show errors in Mr Keher's decision and "a dispute about the country information that the decision relied on". Thus Ms Rosser had not only drawn the general import of the country information to the applicant's attention in his capacity as a witness in the cousin's case, but offered to provide, and presumably did provide, that information to counsel so that the information could be controverted or accepted. It is clear from counsel's response that he was interested in the information because of its implications for the applicant's case. See par 6 above. 13 In the course of discussing with counsel the content of a s 424A notice, Ms Rosser made observations about her decisions in relation to the stowaways and Mr Keher's decision in the applicant's earlier case. Section 424A requires the Tribunal to "(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it." In that context Ms Rosser "articulated [her] position" on the notice by saying that the findings made in the earlier cases about the political profile of the people the cousin assisted to stow away (the stowaways and the applicant) could not be disregarded. By that I understand her to mean she was obliged by s 424A to inform the cousin that those findings constituted information that might lead to the decision under review being affirmed. In thus discharging her duty under s 424A Ms Rosser could not in my view be taken to have shown ostensible bias in the nature of a prejudgment. In Ex parte H at 427 the Court said that in applying the rule as to apprehended bias to non‑curial bodies such as the Tribunal, regard must be had, amongst other things, to the statutory provisions applicable to the proceedings in question. Further, while Ms Rosser's comments were made in the context of the cousin's case, she was addressing counsel who was assisting the applicant, and was thus putting him on notice of her concerns. For the avoidance of doubt I should add that while Ms Rosser referred to factual findings made by Mr Keher in his decision in the applicant's case, when she comes to hear the remitted case she will of course know that Mr Keher's decision was set aside by consent. That occurred after Ms Rosser heard the cousin's case. 14 Neither the first nor the second matter relied on by the applicant, nor those matters taken together, lead me to the conclusion that a fair‑minded lay observer or a properly informed lay person would reasonably apprehend that Ms Rosser might not bring an impartial mind to the applicant's case. THE THIRD MATTER 15 The third element in the applicant's submission requires mention of the issues decided by Ms Rosser in the stowaways' cases. One stowaway (stowaway X) claimed that he faced persecution in Iran because · he attended a demonstration in Abadan · he left Iran illegally · he applied for refugee status in Australia. He also claimed that he had been persecuted in the past because · he did not attend Friday prayers · he did not want to participate in pro‑government demonstrations · he was suspected of associating with the Mujaheddin‑e Khalq Organisation ("MKO"). 16 Ms Rosser accepted that stowaway X had been imprisoned for six months as a result of his contravention of laws of general application (assault and illegal departure from Iran) and not for any Convention reason. She also accepted that he had been detained for 24 hours because a person with whom he had stayed in Dubai was suspected of being a member of the MKO. Ms Rosser concluded that his detention was a one‑off incident that occurred four years ago, and the chance that he would again be arrested because of his association with a person suspected of being an MKO member was remote. Ms Rosser treated the MKO as a different entity from the FKO, and did not rely on country information about the FKO in dealing with stowaway X's claim that he was suspected of associating with the MKO. She also accepted that stowaway X's father was a member of the Tudeh party, but that since the authorities had never shown an interest in the stowaway on this account while he was in Iran, the chance that he would face persecution in Iran was remote and insubstantial. She referred to independent evidence showing that there was no compulsion in Iran to attend prayers and no punishment for not attending. She also referred to the absence of any independent evidence that attending pro‑government demonstrations is obligatory. Ms Rosser accepted that stowaway X attended a demonstration in Abadan in July 2000. However, on the basis, amongst other things, of independent evidence, she did not believe that the authorities had any interest in him because of his participation in the demonstration. On the basis of independent evidence Ms Rosser was not satisfied that leaving Iran illegally would attract any more than a fine, and that in any event this penalty would be for contravention of a law of general application and not for any Convention reason. Finally Ms Rosser referred to independent evidence that applying for refugee status abroad is not illegal in Iran. 17 In the light of this summary of Ms Rosser's decision in stowaway X's case, I am quite unable to accept the applicant's contention that it raises "facts in issue that are substantially similar or identical to the applicant's claim". Stowaway X made no claim to be a supporter of the FKO, and merely asserted that he had attended the Abadan demonstration. According to the applicant, his (the applicant's) involvement in the Abadan drinking water campaign was considerable ‑ writing an article for general distribution about the plight of the Abadan people, arrest, imprisonment and punishment on that account, and organising demonstrations about the water quality. The levels of involvement of the two participants are so different that a conclusion on stowaway X's case could not lead to a reasonable apprehension that that conclusion would or might dictate a similar conclusion in the applicant's case. 18 The other stowaway (stowaway Z) claimed to fear persecution in Iran because · he is an FKO supporter · he attended a demonstration in Abadan · he left Iran illegally · he applied for refugee status in Australia. He also claimed to have been persecuted in the past because · he did not attend Friday prayers · he did not want to participate in pro‑government demonstrations. 19 On the basis of independent evidence Ms Rosser did not accept that the failure to attend prayers or participate in pro‑government demonstrations gave rise to any punishment in Iran or had led to the closure of stowaway Z's business. She accepted that he attended a demonstration in Abadan in July 2000, but on his own evidence all he did was shout slogans. She concluded that the authorities had no interest in him because of his participation in the demonstration. On the basis of independent information Ms Rosser did not accept that leaving Iran illegally or applying for refugee status in Australia gave rise to any well‑founded fear of persecution. She accepted that stowaway Z was a supporter of the FKO, but was not satisfied that he had a well‑founded fear of persecution for this reason. Country information showed that the FKO was not currently active in Iran. In addition stowaway Z did not in his application for a protection visa mention a fear of persecution because of being an FKO supporter. Ms Rosser concluded that he was not actively involved with the FKO. 20 What I have said about stowaway X's Abadan demonstration claim is applicable to stowaway Z. Stowaway Z's claimed involvement with the FKO was of an entirely different order from that claimed by the applicant. Stowaway Z's involvement was slight, whereas the applicant's was considerable. He distributed pamphlets, placards and banners. He attended FKO meetings that were attacked by Islamic groups. He produced a newspaper called "Kar". He was thrown out of an educational course because of his anti‑Islamic views. Further, unlike stowaway Z, he did mention his support for the FKO in his application for a protection visa. While the two cases involve the Abadan demonstration and FKO support, they are in most respects quite different in their factual detail. The only common point is the country information to the effect that the FKO is no longer active in Iran. It is to be noted that the FKO country information is in the possession of the Tribunal generally, not just in Ms Rosser's possession. It is part of the Tribunal's "expertise". But it is open to an applicant to produce countervailing evidence. In the absence of such evidence, the country information in the Tribunal's possession may well carry the day. But that will be the case whether Ms Rosser or some other Tribunal member hears the case. It seems to me to be quite unrealistic at this stage, without knowing what evidence will be placed before Ms Rosser, to assume that she will have only the country information. Counsel's observations referred to in pars 6 and 12 suggest the contrary. 21 The applicant's present submission also relies on the fact that Ms Rosser has heard, but not decided, the cousin's case. I have dealt elsewhere with her conduct in connection with that case. I need only add that Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411, upon which reliance was placed, is readily distinguishable from the present case. There in earlier proceedings the judge had made findings adverse to the credit and general conduct of the parties before him. Here, Ms Rosser has made no findings about the cousin's or the applicant's credit or conduct. 22 For the reasons I have given, a fair minded observer or an appropriately informed non‑observer would not conclude from the fact that Ms Rosser was the decision‑maker in the stowaways' cases and has heard the cousin's case, that she might not bring an impartial mind to the resolution of the applicant's case. It is to be remembered that all she said in connection with the earlier decisions is that factual findings made in them "cannot simply be disregarded". She went on to say there was a question of how much weight should be placed on them, and again said it was not possible "just to completely disregard the earlier findings" or to "have no regard" to them. Those observations do not indicate an intention to follow earlier findings come what may. As the words used indicate, the earlier findings would not be ignored, but would be taken into account; their significance was a matter of weight. That accords with what Hayne J in Jia regarded as permissible, namely to take into account an opinion formed or fact discovered in another case, a course that is not open to a court which must decide a case by reference only to the evidence advanced in the instant case. See par 9 above. CONCLUSION 23 I am not satisfied that a case of apprehended bias is made out. There was some discussion about whether the relief sought by the applicant was in respect of a privative clause decision for the purposes of s 474 of the Migration Act 1958 (Cth). Since the applicant's motion must in any event fail, I need not deal with that issue. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 11 April 2002 Counsel for the Applicant: J W K Burnside QC and D Siemensma Solicitors for the Applicant: Allens Arthur Robinson Counsel for the Respondent: P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 March 2002 Date of Judgment: 11 April 2002