FEDERAL COURT OF AUSTRALIA NAEB/02 v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 1092 MIGRATION – where apprehended bias is alleged – whether s 474 immunises a decision which may be affected by apprehended bias. Migration Act 1958 (Cth), s 474 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 followed Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 referred to May v Commissioner of Taxation (1999) 92 FCR 152 cited R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 referred to Johnson v Johnson (2000) 174 ALR 655 discussed NAEB/02 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 180 of 2002 MOORE J 5 SEPTEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 180 OF 2002 BETWEEN: NAEB/02 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 5 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 N 180 OF 2002 BETWEEN: NAEB/02 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 5 SEPTEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 11 January 2002 and handed down on 6 February 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant the applicant a protection visa. The 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 of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention"). Background 2 The applicant, who is a citizen of Uganda, arrived in Australia on a false passport on 31 December 1999. On 8 February 2000 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 16 March 2000 a delegate of the Minister refused to grant the protection visa and on 23 March 2000 the applicant applied to the Tribunal for review of that decision. The Tribunal's reasons 3 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution". In a section in the decision titled "Claims and Evidence", the Tribunal summarised the claims made by the applicant in his application for a protection visa. It also had before it the departmental file relating to the applicant. The applicant gave oral evidence before the Tribunal on 4 December 2000. The following is a summary of the applicant's account of his circumstances in Uganda drawn from the reasons for decision of the Tribunal. 4 The applicant attended school for seven years, at the completion of which he commenced work as a carpenter. In October 1994 the applicant married, and in April 1999 he and his wife had a daughter. 5 Some time in 1993 the applicant became aware of a group, established in 1991 or 1992, called the Survival of Ugandan Youth Movement ("SUYM"). The aims of SUYM were to raise funds for the victims of government oppression and human rights abuses, as well as promote awareness of government abuses by erecting posters and holding meetings. The activities of the group were conducted in secret as members feared arrest by the authorities. 6 In 1997 the applicant's family were visited by military personnel about the refusal of the applicant's brother to join the army. As a result of the visit the applicant's father was shot and killed. The SUYM then made contact with the family, providing them with money and helping with funeral arrangements. It was this incident which prompted the applicant to join the group. After becoming a member of the SUYM the applicant undertook tasks such as putting up anti-government posters and arranging for meetings of the group to take place. 7 On 6 June 1999, while attending a SUYM meeting in a hall in Kampala, armed police raided the meeting and arrested twenty-one members of the group. During the raid the President of the SUYM was shot as he ran from the hall, while a number of other members were able to escape. Following his arrest the applicant was tortured and held without food, water or toilet facilities. Of the twenty-one group members arrested, seventeen were executed in prison. The applicant and five others, however, escaped with the assistance of a warden at the prison, who was the uncle of one of the detainees. He arranged travel for them to Tanzania. 8 During the applicant's imprisonment his family left the city and, although he was informed by a friend that they had travelled to Congo, he is uncertain of their current whereabouts. A letter received from another friend after his departure from Uganda states that he is being sought by the authorities, who have declared that any member of the SUYM who is rearrested will not receive a pardon. 9 The applicant travelled from Tanzania to South Africa by stowing away on a boat. Once in South Africa he received assistance from a church group known as the Zoe Ministry, an international Pentecostal Church. A pastor who interviewed the applicant put his case before a Church committee, who then decided to help him. They did this by supplying him with a South African passport and an Australian visa. He was instructed to return the passport on his arrival in Australia, which he did. 10 After the applicant arrived in Australia and made an application for refugee status, he sought supporting documentation from Zoe Ministries in South Africa regarding his circumstances and the manner in which they had assisted him. Zoe Ministries provided the Tribunal with a letter dated 7 April 2000 in which they confirmed the applicant's claims relating to the assistance they had given him. Another letter (undated) was provided by Zoe Ministries when the Tribunal questioned the authenticity of the first letter, which had a spelling mistake and incorrect telephone number in the letterhead. The Tribunal also had before it a number of medical and psychological reports to the effect that the applicant had suffered physical abuse and is currently suffering severe post traumatic stress. 11 In a section in its reasons titled "Findings and Reasons for Decision", the Tribunal commenced by finding that it did not consider the applicant to be a credible witness. In relation to the applicant's claim of his father being shot by the military in 1997, the Tribunal stated: "It may be that [the applicant's] father was murdered by soldiers at sometime in the past for some reason. Uganda has suffered a great deal of violence for many years, particularly prior to 1986, and the military have committed human rights abuses over the years. However, it is not plausible that [the applicant's] father was shot and killed in 1997 by agents of the Ugandan government who had been trying to force one of his brothers to join the Uganda army. There is no military conscription in Uganda … and none of the sources which I have consulted suggest that the Ugandan armed forces engage in forcible recruitment. On the contrary, information before me indicates that in response to pressure from donors countries, backed by the World Bank, Uganda had been engaged in a program of demobilising many members of its oversized armed forces in order to reduce government spending." 12 The Tribunal then considered the evidence provided by the applicant in relation to his membership of SUYM, which he claimed to have joined after his father had been murdered. The Tribunal was not satisfied, however, that the applicant had been either involved with SUYM or imprisoned and tortured by virtue of that involvement. It said: "It was clear from his responses to questions put to him during the hearing that he knew virtually nothing about Ugandan politics. While I accept that people may be active participants in political groups or parties without having a detailed or sophisticated knowledge of politics, it is not plausible that someone who was sufficiently interested in politics to join a secret group, membership of which allegedly placed him at risk of serious harm, and who had attended political meetings at least once a month for over a year, would be unable to name a single Ugandan political party or political leader apart from the President. [The applicant] has tried to explain his lack of knowledge about political developments by claiming that he was interested in the group because of its philanthropic work, but I do not accept this explanation. However, this is at odds with his evidence on other occasions, when he claimed to have some understanding of the group's political agenda and to support it. He also claimed to have been involved in organising political meetings and distributing anti-government leaflets, all of which suggests that he was interested in politics during the time he belonged to the group." 13 Addressing next the claim by the applicant that SUYM had conducted its operations in secret, the Tribunal did not consider it plausible that it had been able to, or had been required to, do so. It referred to independent country advice to the effect that the Ugandan government generally respected the right to freedom of expression and freedom of the press, and continued: "I find it difficult to believe that a group which was involved in collecting and distributing assistance to people who had had problems with the government on what [the applicant's] evidence suggests was a relatively broad scale would have been able to remain secret. According to his own evidence, members of the group identified themselves to him and his family in 1997 when they offered assistance after his father was allegedly killed. … And I note the fax from [the applicant's friend in Uganda] dated 13 April 2000 which claims that the Vice-President of Uganda had announced that any member of the SUYM who was re-arrested would not receive a pardon. It is not plausible that the Uganda Human Rights Commission and diplomatic sources contacted by DFAT sometime after 12 April 2000 would have been unaware of the existence of the SUYM and the government's adverse interest in its members if the Vice-President of Uganda had made such a statement." 14 Having already stated that it did not accept the applicant had any involvement with SUYM or was tortured for such involvement, the Tribunal referred to the claim of executions carried out on SUYM members. It said: "(I) find the claim that 17 members of the SUYM were executed extra-judicially in mid-1999 far-fetched and implausible. In the first place, while the Ugandan government is sometimes intolerant of opposition and human rights abuses have occurred [sic], including ill-treatment of prisoners, the evidence does not suggest that members of political groups which do nothing more than criticise the President and call for a multi-party system are at risk of being killed by the authorities. … (I) do not believe that the summary execution of such a large number of members of a peaceful political group based in Uganda would have escaped the attention of the Uganda Human Rights Commission and other human rights groups operating in Uganda. The UHRC has advised that it was not extremely unlikely [sic] that they would have been unaware of the killing if they had taken place." The Tribunal did not accept a submission made on behalf of the applicant that the UHRC was a relatively powerless organisation and, as a result, was not approached by victims of human rights abuses. The Tribunal set out independent country advice to the effect that the UHRC was an independent body with quasi-judicial powers "which received and acted on 1260 complaints" during 1999. It noted there had been visits to Uganda by other international human rights organisations that year. The Tribunal continued: "In these circumstances I do not believe that 17 members of a political group were killed in jail … without knowledge of their deaths becoming public. I find it particularly difficult to accept that the fate of those at the June 1999 meeting would have remained secret if, as claimed by [the applicant], some members of the SUYM managed to avoid being arrested when the groups meeting was raid [sic] and others later escaped from detention. As political activists interested in highlighting the shortcomings of the Ugandan government these people would surely have approached the media or a human rights group such as the UHCR to report what had happened to other members of the group." 15 The applicant's account of how he travelled from Tanzania to Australia, via South Africa, was also considered by the Tribunal to be "far-fetched and implausible". It did not accept that he was assisted by Zoe Ministries, and found the letters on Zoe Ministries letterhead were not authentic. The Tribunal said: "(W)hile it is certainly true that many church groups provide assistance to those in need, including refugees, and it may well be that some use irregular and even illegal means to rescue people in immediate danger, I do not believe that a church group in South Africa would have provided [the applicant] with a South African passport which had been illegally altered and assisted him to travel to Australia and enter the country illegally. South Africa is a signatory to the Refugees Convention and provides asylum to those who are found to be refugees. … I also find it implausible that [the applicant] would have been sent to Australia by a international church group which had been involved in relocating hundreds of refugees around the world, but would not have been given any contacts in Australia to assist him after he arrived." The Tribunal also considered the medical evidence provided in support of the applicant's claims, and stated: "I accept that he has scars and injuries which are consistent with him having been beaten or tortured in the past. However, for the reasons discussed above, I do not believe that his scars were the result of ill-treatment while he was in prison in Uganda because of his involvement with a political group called the Survival of Ugandan Youth Movement. I accept that [the applicant] suffers from post-traumatic stress disorder. Furthermore, it may be that this was caused by witnessing the murder of his father at some time in the past, or to mistreatment while in prison. However, I do not accept that this trauma was caused by witnessing the murder of his father in 1997 by members of Ugandan security forces who wanted to force his brother to join the army, nor to torture while in prison in 1999 for political reasons. When assessing [the applicant's] credibility I have been mindful of the advice regarding his state of mind and of the suggestion that this might cause him difficulty answering questions at the hearing. The only time [the applicant] appeared to have serious difficulty answering my questions was when he was unable to provide any information on recent political developments in Uganda. However, even if I accept that [the applicant] was unable to recall anything about political developments in Uganda during the time he was a political activist because he is suffering from post-traumatic stress disorder, this does not account for the other serious deficiencies in his evidence and does not alter my conclusion that he concocted his claims regarding the reasons for his father's death and his political involvement in Uganda." 16 The Tribunal concluded by affirming the decision not to grant a protection visa. 17 In the proceedings in this Court, the applicant has been represented by counsel acting pro bono. The matter was originally scheduled for hearing on 20 June 2002. However on that day the matter was adjourned and fixed for hearing on 22 August 2002 to enable the applicant's counsel (who had been recently briefed) to prepare the matter for hearing. At the hearing one issue only was raised. It was contended that the member of the Tribunal was biased. However actual bias was not alleged. The contention was of apprehended bias. In the week preceding the resumed hearing a specially constituted Full Court gave judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. I will discuss this judgment shortly. It will then be apparent why I do not embark on a detailed consideration of the evidence tendered and the submissions made about whether it reveals apprehended bias. 18 However, I should mention, in broad outline, the nature of the case that counsel for the applicant sought to make out. It appears not to be in issue, and indeed was a matter about which the Tribunal made a finding in the applicant's favour, that the applicant was suffering from post-traumatic stress disorder. I was taken to the transcript of the hearing before the Tribunal member to illustrate that the member adopted an overbearing attitude towards the applicant who was distressed. The Tribunal, it was submitted, should not have permitted the hearing to continue. In addition, a number of complex propositions were put to the applicant in what were described as long and complicated monologues in circumstances where the applicant's grasp of English was limited. It was submitted that the antipathetic attitude adopted by the Tribunal was all the more apparent from the audio tape of the hearing which was tendered (though I have not listened to the tape). Counsel for the Minister put in issue each of these contentions. 19 Ultimately, however, it is unnecessary and probably inappropriate for me to express a view about the competing contentions and whether apprehended bias has been established. That is because, as I understand the judgment of the majority of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, any decision in which there is no more than a demonstrated apprehension of bias (making the assumption in the applicant's favour that such a case is made out) is effectively protected by s 474 of the Act. 20 In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 the High Court issued relief under s 75(v) of the Constitution against the Refugee Review Tribunal because apprehended bias had been demonstrated. The Court noted at [5] that administrative decisions of the type in question could be reviewed for failure to observe the rules of natural justice, which would extend to cases in which apprehended bias was established. Additional considerations concerning the need to be (and appear to be) impartial arose in relation to judicial proceedings. The source of the obligation of an administrative decision maker to observe the rules of natural justice was discussed by the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219. Gaudron and Gummow JJ indicated at [41] (Gleeson CJ agreeing at [5]) that when a statutory power is conferred the legislature can be taken to have intended that the power be exercised reasonably and, by parity of reasoning, in conformity with the rules of natural justice. The relevant statue may, however, reveal on its proper construction that the obligation to accord procedural fairness has been limited or extinguished. But as Hayne J pointed out at [168]: In Kioa v West, different views were expressed about whether the requirements of procedural fairness arise from the common law or depend upon an implication to be drawn from the legislation conferring authority to make a decision. In Annetts v McCann, the majority of the Court proceeded from the premise that the duty to accord procedural fairness is a common law duty which may be excluded by statute, rather than from the competing premise that the question is whether the obligation should be implied in the statute empowering the decision maker. Even if the source of the obligation to accord procedural fairness is to be regarded as an open question, it is not one which must be resolved now. Indeed, it may be that for many purposes the competing views lead to no different result, the ultimate question being whether the obligation asserted is compatible with the terms of the relevant legislation. On either view, the obligation to accord procedural fairness is an obligation affecting how the decision maker is to go about the task of decision making. It is a limitation on the power to decide. See also of the May v Commissioner of Taxation (1999) 92 FCR 152 at [22] . 21 In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs the Court concluded there had been a failure to accord procedural fairness to the visa applicant because the Tribunal relied on independent country information which had not been made available to the applicant, which was important to the Tribunal's decision making process and which the applicant would have sought to answer: see Black CJ at [4], Wilcox J at [320], French J at [556] and von Doussa J at [648], Beaumont J not deciding [113]. However the majority concluded this did not matter having regard to s 474. Black CJ at [4] and von Doussa J at [648] reached this conclusion on the basis that s 474 excluded the rules of procedural fairness. I should note that counsel for the applicant made a formal submission that NAAV v Minister for Immigration and Multicultural and Indigenous Affairs was wrongly decided. While the particular issue in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs concerned the procedures adopted by the Tribunal, it is probable that when von Doussa J spoke of procedural fairness his Honour was intending to refer more generally to the rules of natural justice. Beaumont J reached the same conclusion at [114] on the basis that the section operated to prevent prohibition going in cases of procedural deficiencies and it was sufficient that the Tribunal, in substance, dealt with the matter. 22 It seems to me that the reasoning of the majority is apt to apply to a situation where it is contended that there is an apprehension of bias concerning the decision maker. It can either be said that s 474 excluded the rules of natural justice (using that expression to comprehend both the requirement to provide a fair hearing in a procedural sense and conduct a hearing in manner that creates the impression of impartiality, assuming, for present purposes, that such a distinction has any substance) or that the section renders a decision immune from challenge where the decision maker in substance dealt with the matter even if, in doing so, gave the appearance of partiality. In my opinion, it is not open to an applicant, because of s 474, to successfully impugn a decision of the Tribunal on the basis of apprehended bias. 23 I should mention one further matter. That is whether evidence led to demonstrate apprehended bias might tend to demonstrate that the exercise of the statutory power was not a bona fide one for the purposes of the principles adumbrated in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. If a person contends that a decision maker was actually biased then the allegation concerns the state of mind of the decision maker. The evidence may also be relevant to the question of bona fides: see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 249, 275, 293 and 305. If, however, the contention is of apprehended bias then the inquiry is entirely different. This matter was discussed by Kirby J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [111]: Until recently it was extremely rare for parties before Australian courts to assume the task of establishing "actual bias" on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish "imputed", "apparent", "apprehended", "suspected", "notional" or "deemed" bias ("imputed bias"). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that "in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it". A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief. (Emphasis added) See also the observations of Kirby J at [134]. 24 It is true that cases can arise where the articulated complaint is of apprehended bias but the real complaint is of actual bias: see the observations of Callinan J in Johnson v Johnson (2000) 174 ALR 655 at [79]. Facts which might demonstrate apprehended bias might also be facts from which inferences could be drawn about the state of mind of the decision maker and a conclusion reached that the decision maker was actually biased. Those facts might also bear upon the question of whether the power had been exercised bona fide. However the use that should be made of the evidence both by the parties and Court when apprehended bias is alleged, is quite different to the use that should be made of it when actual bias is alleged. 25 Thus, in a case such as the present, where apprehended bias only is alleged, it would not, in my opinion, be open to the Court to review the evidence to determine whether actual bias is made out or, more relevantly, there had not been a bona fides exercise of the power: as to the relationship between them see the observations of Gummow J in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Akpata [2002] HCA 34 at [15]-[16]. That is because the party against whom the allegation of apprehended bias has been made (in a forensic sense) will have dealt with the evidence on a footing quite different to that had the allegation been of actual bias or want of bona fides. Plainly enough, an allegation of actual bias or want of bona fides must be clearly made and proved. In the present case no allegation of actual bias or want of bona fides was made at the hearing and, accordingly, the evidence led to prove apprehended bias cannot, in my opinion, be called in aid to establish actual bias and that a statutory power was not exercised bona fide for the purposes of the Hickman principles. 26 The application should be dismissed with costs. I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: Counsel for the Applicant: Mr M McAuley Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 20 June 2002 & 22 August 2002 Date of Judgment: 5 September 2002