FEDERAL COURT OF AUSTRALIA SZBHT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 947 CONSTITUTIONAL LAW – whether s424A(3) of the Migration Act ultra vires the Australian Constitution – whether s61 of the Constitution guarantees a right of due process – whether Tribunal failed to accord due process to applicant – use of country information database MIGRATION – judicial review – bias – whether Refugee Review Tribunal decision infected with apprehended or actual bias – incorrect assertion by Tribunal that no information of a particular kind in database PRACTICE & PROCEDURE – application for extension of time to institute appeal – whether applicant unable to identify any arguable ground of appeal – whether appeal would be futile Atkinson v Commissioner of Taxation [2000] FCA 998, applied Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877, cited Howard v Australian Electoral Commission [2000] FCA 1767, applied Jess v Scott (1986) 12 FCR 187, applied Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, cited Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128, applied R v Webb 1994 181 CLR 41, applied SZBHT v Minister for Immigration and Multicultural and Indigenous Affairs & Anor NSD 987 of 2005 EDMONDS J 12 JULY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 987 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZBHT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EDMONDS J DATE OF ORDER: 12 JULY 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application for an extension of time in which to file and serve a notice of appeal 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 NSD 987 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZBHT APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EDMONDS J DATE: 12 JULY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave, pursuant to Order 52, rule 15(2) of the Federal Court Rules, to file and serve out of time a notice of appeal from a judgment of the Federal Magistrates Court (Scarlett FM) delivered on 23 May 2005. 2 On Thursday, 16 June 2005, I agreed to hear the application on an urgent basis. Mr Levet of counsel appeared on behalf of the applicant. Initially there was no appearance on behalf of the first respondent (the Minister). Mr Levet informed me that he had been unable to get hold of Mr Markus of the Australian Government Solicitor in the short time since he had received instructions to make the application. Later, in what was a relatively short hearing, a Ms Alexander from the Australian Government Solicitor appeared on behalf of the Minister. 3 At the time of the hearing, no application for leave to file and serve out of time a notice of appeal (Form 54A) had been filed in the Registry and there was no affidavit filed in support of the application. Mr Levet handed up a hastily prepared draft notice of appeal and explained that the reason for the urgency was because the applicant, who I was informed was in Baxter Detention Centre, had been informed that morning he might be removed from Australia later in the day. Mr Levet further informed me that while he had been initially told that no undertakings would be given that the applicant would not be removed from Australia, he had subsequently been informed by a functionary of the Department that in the event an appeal was filed that day there would be no attempt to deport the applicant prior to a hearing of the matter. In those circumstances, Mr Levet informed me that it probably was not appropriate to pursue his original instructions to seek urgent injunctive relief to restrain the applicant being removed. 4 Consequently, I heard, ex parte, the applicant's application for leave to file and serve out of time a notice of appeal. Mr Levet, on behalf of the applicant, indicated that the delay in filing a notice of appeal was only short, some 3 days – the time prescribed by Order 52 rule 15(1) had only expired on 13 June 2005 – and that the reasons for the delay were because he [Mr Levet] was absent on circuit for most of the period from the time the judgment of the Federal Magistrates Court was delivered (23 May 2005) until after the expiration of time for filing and serving a notice of appeal; and that his instructing solicitor intended to brief him to settle the notice of appeal and had overlooked the effluxion of time. He also submitted that these reasons should be understood in the context that he and his instructing solicitors were representing the applicant on a pro bono basis, his instructing solicitor under the Law Society pro bono scheme, and he under the Bar Association pro bono scheme. 5 On announcing her appearance, Ms Alexander informed me that '… no arrangements had been made to remove the applicant from Australia today or tomorrow …' and that she could give an undertaking, on behalf of the Minister, that the applicant would not be removed unless he was given 48 hours notice. She suggested that the application for extension of time be heard on another day shortly after the Minister had had an opportunity to consider the grounds relied on in the draft notice of appeal. Following some discussion as to my availability and the availability of counsel, as well as the time for which an undertaking might be given that the applicant would not be removed from Australia, I stood the matter over until 10.15am on Tuesday, 21 June 2005, on the following bases: (i) An undertaking on behalf of the Minister that no steps would be taken to remove the applicant from Australia before that time; (ii) before that time an application (Form 54A) for leave to file and serve out of time a notice of appeal would be filed in the Registry; and (iii) that the application would be supported by an affidavit setting out the reasons for the delay and annexing a draft amended notice of appeal setting out the grounds upon which the applicant proposed to rely. 6 An application for leave to file and serve out of time a notice of appeal was filed in the Federal Court Registry on 17 June 2005 and the matter came back before me on Tuesday, 21 June 2005. On that occasion, Mr Levet appeared for the applicant and Mr Markus, of the Australian Government Solicitor appeared on behalf of the Minister. Mr Markus also announced that he had instructions on behalf of the second respondent. I gave leave to Mr Markus to file in Court a notice of appearance on behalf of the Minister and a notice of appearance, by way of a submitting appearance, on behalf of the second respondent. 7 Mr Levet handed up an affidavit of Dr Jyoti Bharati sworn 20 June 2005 to which there was annexed a draft amended notice of appeal proposed to be filed if leave was given to file it out of time, a copy of the application that was before the Federal Magistrates Court and a copy of his submissions to that Court. The affidavit also set out, by way of confirmation, the reasons why a notice of appeal had not been filed within time as well as an observation that Scarlett FM '… did not address all relevant issues in his judgment'. I gave leave to Mr Levet to file the affidavit in Court and to read it while noting the protest of Mr Markus that the observation concerning Scarlett FM's judgment was not accepted. 8 Mr Markus indicated that his instructions were to oppose the granting of leave to file and serve out of time a notice of appeal, not on the ground of undue delay – indeed, the delay was not significant and the reasons for the delay were explicable in the circumstances – nor on the ground of any prejudice to his client. Indeed, he conceded that if there was any prejudice it would be greatly outweighed by the prejudice which would accrue to the applicant if he, in fact, had any serious issue to be tried. What he did submit, however, was that in the exercise of my discretionary power, one of the matters which needed to be taken into account is the prospects of any appeal, if any extension of time is granted. Specifically, his submission was that the discretion should not be exercised in an applicant's favour in circumstances where the proposed appeal had no prospects of success whatsoever and would amount to an exercise in futility. There is clear authority for this submission in the form of Howard v Australian Electoral Commission [2000] FCA 1767 (Branson J). 9 After referring to what the Full Court said in Jess v Scott (1986) 12 FCR 187 at 195: "What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this." her Honour said: "6. The circumstances surrounding the failure of the applicant to file and serve a notice of appeal within the time allowed by the rules are such that, subject to the matters which I will shortly mention, grounds for departure from the general rule that a notice of appeal is to be filed and served within 21 days after the date when the judgment sought to be appealed from was pronounced can be identified. 7. However, even where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought. Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal (Jess v Scott at 188)." 10 Sackville J also considered the issue in Atkinson v Commissioner of Taxation [2000] FCA 998 and at [3] his Honour said: "The Commissioner takes no point as to the adequacy of the applicant's explanation for the relatively short delay in invoking the Court's appellate jurisdiction. The Commissioner opposes the grant of leave on the basis that the applicant has not shown that he has any arguable grounds of appeal. The Commissioner correctly submits that if the applicant is unable to identify any arguable ground of appeal, an appeal would be futile and the Court would not grant an extension of time: Jess v Scott (1986) 12 FCR 187 (FC), at 195; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936, at [5]; Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 (FC), at [12]." 11 By way of background, I should record that the applicant is a citizen of Bangladesh who arrived in Australia on a student visa on 13 February 1999. He applied for a protection (class XA) visa on 21 January 2000. A delegate of the Minister refused his application. The applicant sought a review from the Refugee Review Tribunal. Before the Tribunal, the applicant claimed that he had a well-founded fear of persecution in Bangladesh. The reasons that he gave at the Tribunal were, first that the main fundamentalist party in Bangladesh known as the Jam'at Islami was trying to harm him because of his actions in 1977 and that he had tipped off two well known people that the Jam'at Islami were going to harm. Second, that he was a homosexual and Jam'at Islami had become aware of this and had made the news of his sexuality public and had threatened to harm him. Third, when the news of his homosexuality had become public this had caused great distress with his family who had given him problems. Fourth, that he could not go home and live safe from political harm even now the BNP was in power because he faced harm from a particular branch of that party. 12 The Tribunal was not satisfied that the applicant's evidence was credible; quite the reverse in fact. So much is apparent from the following extracts from the Tribunal's findings and reasons: "I have reached the firm view that the applicant has concocted a series of claims to support his protection visa application. I am not satisfied that any of his claims are credible" "Given his ignorance of these matters I consider that he has either invented or greatly exaggerated the extent of his activities and profile in the BNP and therefore I am not satisfied that he had attracted significant adverse attention from political enemies. To be specific, I am not satisfied that he had faced serious harm or had many false charges laid against him" "For the sake of completeness I will add that if at any time the applicant were to be threatened with harm over his political views, either from within or without the BNP he could avail himself of protection of the Bangladeshi authorities" 13 The Tribunal member was no more convinced about the applicant's other claims. At Court Book p.61 at point 4, she said: "I am not satisfied that the applicant's late claims that being homosexual or facing harm from Jama'at Islami or facing harm from an anti independence BNP wing are credible. I am of the firm opinion that these claims have been invented in an attempt to give an alternative base to his protection visa application now that the BNP is in power and claims of facing persecution for being a BNP supporter sound distinctly hollow". 14 The Tribunal member did say, at p.62: "Further there is no country information before me that supports the claim that Jama'at takes violent action against homosexuals with or without impunity and for this reason too I find that the applicant's claim lacks credibility". 15 The Tribunal member goes on to say: "There is no country information that supports the claim that gays are persecuted in Bangladesh". 16 As indicated in [1] above, the judgment, from which it is sought to file and serve a notice of appeal out of time, was delivered on 23 May 2005. It was only when I was addressed by Mr Markus on Tuesday, 21 June 2005 did I learn that there was an anterior interlocutory judgment of the Federal Magistrates Court, similarly constituted, delivered on 2 May 1995. That judgment related to an application for a declaration that s424A(3) of the Migration Act 1958 (Cth) does not apply to a bill of discovery in a Chapter III court, for discovery of documents in the possession of the first respondent and the second respondent '… containing or relating to country information in respect of Bangladesh', and a direction that proceedings be stayed until there is a return in accordance with the bill of discovery. 17 It was pointed out that grounds 7, 8 and 9 of the draft amended notice of appeal (annexed to the affidavit of Dr Jyoti Bharati [7] above) sought to re-agitate these matters and that leave was sought in the amended notice of appeal to do so. 18 The first four grounds of the applicant's draft amended notice of appeal, namely: "1. That his Honour erred in failing to find s424A(3) of the Migration Act is ultra vires the Australian Constitution; 2. That his Honour erred in failing to hold that s61 of the Australian Constitution imposes on the respondent an inexcludable requirement of due process including procedural fairness; 3. That his Honour erred in failing to hold that s424A(3)(a) of the Migration Act is in breach of such requirement of due process and therefore ultra vires s61 of the Australian Constitution. 4. That consequent upon the foregoing his Honour erred in failing to hold that the following amounted to a breach of such constitutionally guaranteed right of due process, or in the alternative constituted procedural unfairness amounting to jurisdictional error: (a) That the second respondent had regard to selected 'Independent Country Information' in relation to Bangladesh in circumstances where country files in their entirety held by the respondent and available to the Tribunal were not available to the applicant. (b) That the second respondent failed to consider all relevant material, including Independent Country Information in its possession (but not available to the applicant) as to the persecution of homosexuals in Bangladesh. In particular but without limiting the generality of the foregoing the Tribunal failed to consider the following documents: (i) Document number CX 16187 'Bangladesh Persecution of Homosexuals in South Asia' – CIS Information Request No. BGD03157; (ii) Record of Telephone Conversation Between the RRT Research Desk and Dr Santi Rosario, specialist in Sociological and Anthropological Studies, the University of Newcastle, 4th September 1996 – Homosexuality in Bangladesh. (iii) Fax message dated 30 August 1996 from The Naz Foundation. Subject: Bangladesh. (iv) Bangladesh: Update to Response to Information Request BGD 168.39E of 18 March 1997 on the treatment of homosexuals and the ritual of tawba- Immigration and Refugee Board, Ottawa." were all run below, save that ground 4(b) now particularises specific documents which it is alleged the Tribunal failed to consider, which failure it is claimed amounted to a breach of a constitutionally guaranteed right of due process conferred by s61 of the Australian Constitution, or in the alternative constituted procedural unfairness amounting to jurisdictional error. 19 The learned Federal Magistrate, correctly in my view, rejected the applicant's claims based on these grounds. His Honour said: "15. …The Refugee Review Tribunal is an administrative decision-maker and a creature entirely of statute, there is no Constitution obligation on the Commonwealth to provide any merits of review of decisions made by the respondent or the respondent's delegate under the Act. Much less is there an obligation to impose upon that creature of statute an obligation to provide an applicant every piece of paper or every item of electronic information pertaining to the applicant's homeland … 18. Section 424A(3) says nothing about how the Courts perform their judicial function. At most it affects the underlying rights or obligations, the observance of which the Courts ultimately decide." 20 Section 424A(3)(a) is merely excluding the Tribunal from its obligation to give to the applicant particulars of certain information under s424A(1)(a). But for s424A(1)(a), there would be no obligation on the Tribunal to give any information to the applicant; and there would be no work for s424A(3)(a) to do. It has not been suggested that in limiting the information that s424A(1)(a) obliges the Tribunal to give to an applicant it is ultra vires s61 of the Australian Constitution, just that the further limitation in s424(3)(a) so offends. But it must be implicit in the argument that s424A(1)(a) is ultra vires on the same basis. With respect, any such argument is untenable and has no prospects of success. 21 It follows, in my view, that the applicant cannot succeed on ground 4 of the draft amended notice of appeal. Assuming for the purpose of argument that one is entitled to equate the obligation of giving particulars of information to making available 'country files in their entirety' and considering 'all relevant material … in its (the second respondent's) possession', the available country files and relevant material are outside the scope of the limited information, particulars of which the Tribunal is mandated to give to the applicant under s424(1)(a). That information is limited to information that is adverse and significantly material to the applicant's claims, and is further limited by the terms of s424(3)(a). With respect, the argument inherent in ground 4 of the draft amended notice of appeal also has no prospect of success. 22 Which brings me to ground 5 of the applicant's draft amended notice of appeal, which is in the following terms: "That his Honour erred in failing to hold that the Second Respondent's assertion (Transcript page 4 at top) that '… the Tribunal has to establish that there is no safety for this person in Bangladesh. OK. If the Tribunal thinks that there is safety for you in Bangladesh it must be prepared to make this decision on the basis of how conditions are in Bangladesh now' constitutes an error of law, and in the alternative procedural unfairness, amounting to jurisdictional error." 23 This ground was agitated below and dealt with in both the interlocutory judgment and the judgment from which it is sought to file and serve a notice of appeal out of time, although in the former it seems to have been put by the applicant and considered by the learned Federal Magistrate as a plank in the applicant's apprehended bias claim (see [27] below). 24 In the interlocutory judgment, his Honour said: "52. Mr Levet points to the fact that this is not the test, even though the Tribunal member used the correct test in the decision. What Mr Levet submits is that by then it was too late and that the use of the correct test in the decision does not act to validate the earlier citing of the incorrect test. The damage had been done and was irreparable, because it misled the applicant as to what was to be expected. 53. I am mindful of the fact that allegations of bias and bad faith are serious matters and involve personal fault. Even apprehended bias is an allegation that should not be made lightly. 54. In my view, certainly at this interlocutory stage, the point made about the incorrect citing of the test at the outset of the proceedings by the Tribunal member, is not so much an indication of bias but a use of infelicitous language. Indeed, I am referred to the well known decision of Wu Shan Liang v The Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 relating to the way in which the Court should look at the language used by a decision-maker. 55. I am not of a view that that of itself would be sufficient for me to form an apprehension of bias (sic) any more than the adverse decision would form such apprehension." 25 In the final judgment, his Honour said: "19. Turning to the misleading assertion by the second respondent that was alleged … 20. The applicant says that this constitutes an error of law and that the Tribunal member should have spoken about the test was whether the applicant had a well founded fear of persecution. He submits that it was too late for the Tribunal member to formulate the test correctly when actually handing down the decision and that the applicant's responses would have been tainted by this misdirection of the Tribunal. 21. As I said I gave some consideration to that point in the earlier proceedings. In my view it was unfortunate for the Tribunal member to have used in the proceedings the phrases that she did. It seems to me unlikely that her rather infelicitous use of the language would have misled the applicant and in my view the fact that the Tribunal member used the correct test in approaching her decision cures any defect that there may be. So that ground must fail." 26 In my view, the manner in which the Federal Magistrate approached and dealt with this matter is not attended with any error. Even if the assertion can be properly called misleading, it did not form part of the Tribunal's decision but was made at the outset of the hearing in the context of the Tribunal explaining its role and the issues as it saw them. There was certainly no evidence that the applicant was misled; nor indeed any submissions linking the applicant's specific responses to the misleading assertion, apart from a general submission that the applicant's response would have been tainted by the misdirection of the Tribunal. 27 In my view, the applicant has no prospect of succeeding on this ground. 28 Ground 6 of the draft amended notice of appeal, namely: "6. That his Honour erred in failing to hold that a reasonable person might apprehend that the Second Respondent in determining issues before it, including the issue of whether or not the Applicant was a homosexual, was biased against the Applicant." was also agitated below and dealt with in both the interlocutory and final judgments. 29 In written submissions to the Court below, the applicant's counsel submitted: "19. The Tribunal member ultimately made a finding of the fact that the Applicant was not a homosexual. The Applicant had asserted on oath that he was. There was no evidence to the contrary. He was disbelieved ostensibly because of the perception that he had raised the issue at a late stage in the proceedings. It is respectfully submitted that the conduct of the Tribunal member was such as to give rise to an inference that in making this decision (or indeed any decision involving the Applicant) that he was biased against the Applicant. 20. In SCAA v MIMIA [2002] FCA 668 von Doussa J said: '… where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interest such as a hostile attitude throughout the hearing … or a failure to enquire into and obtain readily available and important information relating to central matters for determination … an inference of actual bias might then be more readily drawn'. 20. In the present case, apart from the adverse decision on the matter generally, the Applicant can point to the following as indicia of bias: (a) The Tribunal at the outset enunciates the wrong test; (b) The Tribunal fails to obtain readily obtainable independent country information; (c) The Tribunal relies on a document which is on its face wrong; and (d) The Tribunal makes a finding of fact that the Applicant is not a homosexual despite both his sworn assertion that he is, and despite a total absence of evidence to the contrary. For the above reasons it is submitted that a reasonable inference can be drawn that the Tribunal member was biased and that the finding should be set aside." 30 With respect to Mr Levet, Ground 6 is clearly directed to apprehended bias and I did not understand him to depart from that in his submissions to seek to make out actual bias. It would add unnecessary difficulty to his case to do so, as it is possible for an applicant to succeed solely on the ground of apprehended bias: See Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 541, [111] per Kirby J. This is so despite the provisions of Parts 7 and 8 of the Migration Act because this application seeks relief pursuant to s 39B of the Judiciary Act and therefore invokes the High Court's jurisdiction under s 75(v) of the Australian Constitution: Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128 at 138-9, 144-153. 31 In R v Webb 1994 181 CLR 41 the High Court confirmed that the test for apprehended bias in Australian law is based on response of a fair-minded observer to the circumstances of the case. Deane J, who dissented as to the result but who agreed with the other member of the Court on this point, said (at 67-8): "In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue. The quote words in that statement of the test are taken from the judgment of the Court in Liversey v NSW Bar Association." (Footnotes omitted) 32 His Honour went on to set out four distinct, though overlapping, categories of case: at 74. This case falls within the second of those categories, that is, that "conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias". (See also Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 at [67] – [68] per Lander J) The test in this case may therefore be expressed as "whether, in all the circumstances, the conduct of the Tribunal member might not bring an impartial and unprejudiced mind to the determination of the applicant's application for review." 33 The first point to note in relation to this test is that one must look at "all the circumstances" of the case when applying it. That is, one must not take the four alleged indicia relied on in the applicant's submissions 'out of context': see Epeabaka at [91] (CLR 158) per Kirby J. Secondly, in Epeabaka Kirby J gave the following guidance at [90] (CLR 158): "…it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person "might" (rather than "would") entertain a reasonable apprehension of bias in the particular case[83], the serious consequences that necessarily attend the affirmative conclusion oblige that it should be "firmly established"." (Footnotes omitted) 34 Thirdly, it must be possible for the four alleged indicia set out in the applicant's submissions to support either alone, or in some combination, the allegation of apprehended bias. 35 In the interlocutory judgment the learned Federal Magistrate, as already noted in [23] above, concluded that the first of these alleged indicia – the Tribunal at the outset enunciates the wrong test – would not of itself be sufficient for him to form an apprehension of bias any more than the adverse decision, would form such apprehension. I entirely agree with this view. 36 In the same judgment, his Honour dealt with the fourth of these alleged indicia – the Tribunal makes a finding of fact that the applicant is not a homosexual despite both his sworn assertion that he is, and despite a total absence of evidence to the contrary – as being entirely an issue of credibility. I am in complete agreement with his Honour's view. As his Honour pointed out, there was some evidence upon which the Tribunal was entitled to be sceptical, at the very least, about the applicant's claim, because the claim by the applicant of being homosexual and thereby facing persecution was made very late in the applicant's case. In my view, it is not an indicia of bias, actual or apprehended. 37 In the same judgment his Honour dealt with the second of these alleged indicia – the Tribunal fails to obtain readily obtainable independent country information – and the third of these alleged indicia – the Tribunal relies on a document which is on its face wrong – as one and the same point: At [59]. 38 His Honour said: "65. … It is an important point, because where there is information on a database that is available to the decision maker but is not available to an applicant, an incorrect assertion that there is no material on the database in support of the applicant's case is more than jut a statement of fact. It goes to the very heart of the operation of the Refugee Review Tribunal. 66. If the decision maker, for whatever reason, states categorically but incorrectly that there is no material on the database that supports an applicant's case, but only material that supports the respondent's case, this will lead to a loss of confidence, not only amongst applicants, but also of the community in the integrity and the operation of the Refugee Review Tribunal. Quite clearly, in an appropriate case, it could well be held to be a jurisdictional error. 67. To my mind, the failure by the Tribunal member, inexplicable though it is to identify this material, does not of itself establish malice. It does not of itself establish bad faith and it would not of itself, even with the adverse finding, be sufficient to make a serious finding of bias, either actual or apprehended bias. I am aware that a finding of bias is a grave finding. In my view a Court should be reluctant to ascribe to bias that which can be as easily attributed to error. 68. In any event, this is a case where, as I have said, no amount of discovery on the CISNET database will produce any evidence which will assist the applicant in asserting to a Tribunal that he is in fact a homosexual. The Tribunal's decision on that was arrived at as a result of a reliance on certain evidence which was before the Tribunal." 39 In the final judgment, his Honour said: "22. The other matter of significance is the question of bias on the part of the second respondent. That was the matter where I considered the question of bias in the earlier proceedings. I was referred to the well known decision of Von Doussa J in the Federal Court in SCAA v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 668. At paragraphs 50, 51, 52, 53, 54 and 55 of my decision of 5 May I dealt with the issue of bias and I adopt those paragraphs in my decision today. I am not satisfied that bias has been shown. At paragraph 67 of my earlier decision I said I am aware that a finding of bias is a grave finding. In my view, a Court should be reluctant to ascribe to bias that which can be as easily attributed to error. I am not satisfied that there was bias shown. 23. The other point was the inexplicable statement by the Tribunal member that there is no country information that supports a claim that gays are persecuted in Bangladesh. This does seem to me to be extraordinary. In the circumstances, however, the finding was that the Tribunal was not satisfied that the applicant was a homosexual or is a homosexual. As such the failings on the part of the Tribunal as far as country information in respect of gays in Bangladesh, if such they be, is not relevant. This is a matter that was decided on credibility. The Tribunal made strong findings about the applicant's lack of credibility. 24. Credibility is a finding that is a matter for the Tribunal par excellence to quote McHugh J, in paragraph 67 of Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durarajasingham (2000) 168 ALR 407. This is a matter that was decided on credibility. The Tribunal was not satisfied as to the applicant's credibility and on that basis the applicant to my mind must fail." 40 While his Honour dealt with the second and third alleged indicia of bias as one and the same point, I prefer to deal with them as they were submitted – as separate points. The third alleged indicia of bias – the Tribunal relies on a document which is on its face wrong – is not an indicia of anything, let alone bias, because on its face it cannot be wrong. It can only be wrong by reference to evidence to the contrary, but there was none. It might turn out to be a finding of fact that is wrong, but, however that may be described, it is not bias, actual or apprehended. 41 The second alleged indicia of bias – the Tribunal fails to obtain readily obtaining independent country information – is, as his Honour found, inexplicable having regard to the documents that were known to exist by the applicant's legal representatives as a result of their involvement in earlier cases, but is also important for the reasons touched upon by his Honour at [65] and [66] of his interlocutory judgement. However, I agree with his Honour that it does not follow that this is an indicia of bias. Such an inference might be more readily drawn, but only in conjunction with other matters pointing in the same direction, of which, in my opinion, there are none, if the Tribunal had found that 'the applicant is a homosexual', but the Tribunal found to the contrary. And whatever the 'available country files' and 'relevant material' would have disclosed, they would not have disclosed that the applicant was homosexual. 42 For these reasons, I am of the opinion that none of four alleged indicia of apprehended bias, either alone or in some combination, support that allegation and it follows that the applicant has no prospect of success on ground 6 of the draft amended notice of appeal. 43 In conclusion, I am of the view that the applicant has no prospects of succeeding on the grounds set out in its draft amended notice of appeal. 44 For this reason, the application for leave to file and serve out of time a notice of appeal from the judgment of the Federal Magistrates Court (Scarlett FM) delivered on 23 May 2005 must be dismissed. The applicant should pay the respondent's costs. 45 It is not necessary for me to consider grounds 7 to 9 inclusive of the draft amended notice of appeal because these can only be pursued if I were to grant leave to file and serve out of time a notice of appeal and there was a further grant of leave to allow them to be pursued. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 12 July 2005 Counsel for the Applicant: Mr B Levet Solicitor for the Applicant: Bharati Solicitors Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16, 21 June 2005 Date of Judgment: 12 July 2005