Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND HAYNE JJ

RE THE MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS & ANOR RESPONDENTS

EX PARTE FAUSTIN EPEABAKA PROSECUTOR

Re Minister for Immigration and Multicultural Affairs;

Ex parte Epeabaka [2001] HCA 23

3 May 2001

M22/1999

ORDER

Application dismissed with costs.

Representation:

R R S Tracey QC with P R D Gray for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

I R L Freckelton for the prosecutor (instructed by Victoria Legal Aid)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka

Immigration – Refugees – Protection visa – Affirmation by Refugee Review Tribunal of decision to refuse application for protection visa – Public statements made by Tribunal member on personal Internet home page about truthfulness of applicants for refugee status – Whether Pt 7 of Migration Act 1958 (Cth) constitutes a code excluding the common law rules of natural justice and in particular the ostensible bias rule.

Administrative law – Natural justice – Bias – Reasonable apprehension of bias – Whether a reasonable party or member of the public might apprehend that decision of Tribunal member was affected by a prejudiced mind – Whether ostensible bias may be inferred from statements made after a decision.

Constitution, s 75(v).

Migration Act 1958 (Cth), Pts 7 and 8.

1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This application, brought under s 75(v) of the Constitution, was directed by Hayne J to be made to the Full Court. The applicant seeks writs of prohibition (with certiorari) and mandamus. 2. The applicant, in April 1996, sought a protection visa, claiming to be a refugee. In September 1996, a delegate of the first respondent refused that application. The applicant, in October 1996, applied to the Refugee Review Tribunal ("the Tribunal") to review the delegate's decision. The Member constituting the Tribunal was Dr Rory Hudson. In January 1997 the Tribunal affirmed the delegate's decision. There were then proceedings in the Federal Court of Australia, to which further reference will be made below. In February 1999, the applicant commenced proceedings in the original jurisdiction of this Court, claiming that the decision of the Tribunal, constituted by Dr Hudson, was "affected by … bias". This was later refined to an assertion of apprehended, rather than actual, bias. The applicant's contention was that "the decision of the … Tribunal made by Dr Rory Hudson … would excite in the mind of a reasonable party or member of the public [an apprehension] that it was the product of a partial and prejudiced mind." 3. The source of the asserted apprehension of partiality and prejudice was a public statement made by Dr Hudson, said to reveal what counsel for the applicant referred to as his "attitudes" towards people claiming refugee status. Counsel explained that, by "attitude", he meant "an entrenched predisposition toward an issue or a class of person". The entrenched predisposition was said to involve an adverse opinion of the credibility of people claiming to be refugees.