NACG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 748

FEDERAL COURT OF AUSTRALIA

NACG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 748 NACG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 701 OF 2003 JUDGE: WHITLAM J DATE: 11 JULY 2003 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 701 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NACG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 11 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 701 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NACG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 11 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court dismissing with costs an application for review of a decision of the Refugee Review Tribunal ("Tribunal") made on 19 September 2002: NACG v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FMCA 239. The Tribunal affirmed the decision of a delegate of the respondent to refuse to grant a protection visa to the appellant. 2 The background to the application for a protection visa and the processing of that application is set out in the reasons for judgment in the court below. The primary ground of review stated in the amended application in the court below alleged that the Tribunal prejudged the appellant's application for a protection visa. The appellant's notice of appeal from the decision of the magistrate repeats that allegation. 3 The appellant has the misfortune to be acting for himself and not to have the assistance of a lawyer. Nevertheless, the appellant is obviously an intelligent young man. He says that the ground that he asserts is one of actual or apprehended bias on the part of the Tribunal. In particular, the appellant takes issue with the finding of the Tribunal, expressed at pages 17 and 20 of its reasons for decision, that he was not a credible witness. 4 The Tribunal's statement of reasons contains a summary of the claims and evidence, including those presented by the appellant at the hearing on 19 September 2002. The Tribunal concluded that key aspects of the appellant's claims and testimony were not credible in light of the independent country information and found that the appellant was not a credible witness. The Tribunal considered that the appellant's claims were "vague, general or not sufficiently-detailed to be believable". The Tribunal also said that aspects of the appellant's demeanour, in particular, his delay in answering questions, cast doubts on his credibility. The Tribunal acknowledged that the appellant needed time to think about questions before answering, but it concluded that the appellant's lengthy delays could not be explained consistently with a finding that he was a credible witness. Accordingly the Tribunal found that the appellant did not have a well-founded fear of persecution due to a political opinion or for any other Convention reason. 5 Central to the allegation of bias before the magistrate was the time frame in which the Tribunal delivered its decision, that is, on the same day as the hearing before it. As is apparent from its statement of reasons, the Tribunal gave consideration to what the appellant had said during the hearing. Whilst it is no doubt unusual for a decision of this kind to be delivered on the same day as the relevant hearing, the fact that the Tribunal did so could not, of itself, suggest bias on the part of the Tribunal. The magistrate concluded that the appellant had not shown any bias on the part of the Tribunal and dismissed the application for review. 6 In dealing with this matter, particularly where the appellant is unrepresented, I have been greatly assisted by the very helpful written submissions of counsel for the respondent. The following passage is particularly in point: "The Tribunal held a hearing under s 425 of the Act because it was not able to decide the review in the appellant's favour. Having made that decision, it was open to the Tribunal to ask the appellant questions and this did not of itself establish actual or apprehended bias. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J stated the test of actual bias as follows: 'Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion . . . .The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.' (at [71]-[72]) In Minister for Immigration and Multicultural and Indigenous Affairs v WAAG,reported in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, Heerey and Kiefel JJ held that the Federal Magistrates Court erred in its conclusion that there was actual bias on the part of the Tribunal since the only basis for the conclusion was a complaint about the 'nature and tone of the questioning' by the Tribunal member. This relates to 'matters of personal style' (at [66]) which are for the individual Tribunal member. McHugh and Gummow JJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [49] the Tribunal is 'enjoined b y statute to apply inquisitorial processes'. In particular, the Tribunal is entitled to test the applicant's evidence against the country information (WAAG at [65]). An appearance of bias arises where a fair minded observer might reasonably apprehend that the decision-maker does not bring a fair and unprejudiced mind to the matters before him or her: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128. Apprehended bias rests on what may be observed objectively, as distinct from the actual state of mind of the decision-maker: Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431 at [10] per Heerey and Kiefel JJ. In Applicant S20/2002, the High Court held that actual or apprehended bias does not necessarily arise from illogical, irrational decision-making or inferences: at [52], [75] per McHugh and Gummow JJ, [99]-101], [136] per Kirby J. See also conclusions of Gleeson CJ at [19] and Callinan J at [174]. Re-affirming Jia Legeng, Kirby J said at [101]: '. . . a manifestly defective or illogical approach to the consideration of evidence and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. Such an approach does not necessarily demonstrate imputed bias. An allegation of bias, in this sense involves the appearance that the mind of the decision-maker was committed to a conclusion already formed and incapable of alteration.' In the present case, there is no basis for finding either actual or apprehended bias on the part of the Tribunal. The Tribunal was entitled to ask the appellant questions and test his evidence against the country information about anti-corruption associations in China. There is no evidence that the Tribunal had a closed mind so as to constitute actual bias. Nor is the test of apprehended bias met. A reasonable observer would not apprehend that the Tribunal member did not approach the matter with a fair and unprejudiced mind. His Honour Magistrate Scarlett did not err in holding that there was no bias on the part of the Tribunal." 7 I accept those submissions as to the law and as to the application of the relevant principles in the present appeal. Accordingly, I am relieved from considering whether any such bias could constitute jurisdictional error in the terms explained in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 77 ALJR 437. 8 The magistrate decided the question of bias by reference to the so-called Hickman condition that a decision-maker must exercise his or her powers bona fide. That does not suggest in the present context any error of approach by the magistrate. In particular, his reference to the judgment of Heerey and Kiefel JJ in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN at [10] was apt. Their statement was recently endorsed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142. 9 The appellant's other ground of appeal was that there was an "error of law". Nothing was said about that ground. The appellant simply canvassed the merits of his visa application. So much would appear to be the course he also pursued in the court below. No ground of appeal has been made out, and the appeal will be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.