Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON AND GUMMOW JJ

RE REFUGEE REVIEW TRIBUNAL & ANOR RESPONDENTS

EX PARTE H & ANOR PROSECUTORS

Re Refugee Review Tribunal; Ex parte H

[2001] HCA 28

24 May 2001

S276/2000

ORDER

1. Order absolute for a writ of prohibition prohibiting the respondents from taking action on the decision of the first respondent made on 16 November 1999. 2. Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 16 November 1999. 3. In respect of the application by the prosecutors dated 31 December 1997, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law. 4. Respondents to pay prosecutors' costs of the proceedings in this Court.

Representation:

T A Game SC with D H Godwin for the prosecutors (instructed by R A Kessels)

No appearance for the first respondent

S J Gageler SC for the second respondent (instructed by Australian Government Solicitor)

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 Refugee Review Tribunal; Ex parte H

Administrative law – Natural justice – Reasonable apprehension of bias – Affirmation by Refugee Review Tribunal of decision to refuse applications for protection visas – Credibility in issue before Tribunal – Constant interruptions of and challenges to evidence of applicant – Whether vigorous testing of evidence might lead a fair-minded lay person to apprehend bias on the part of the Tribunal – Appropriate modification of test for apprehended bias when applied to administrative proceedings – Whether relief under s 75(v) of the Constitution should be refused on discretionary grounds.

1. GLEESON CJ, GAUDRON AND GUMMOW JJ. The prosecutors, who are husband and wife, are citizens of Sri Lanka. They seek relief under s 75(v) of the Constitution with respect to a decision of the Refugee Review Tribunal ("the Tribunal"). Their application for relief has been referred to a Full Bench of this Court to be determined by reference to the transcript of argument which the parties presented before the Chief Justice and, also, by reference to their supplementary written submissions. 2. The prosecutors arrived in Australia in October 1997. Shortly afterwards, they applied for protection visas pursuant to s 45 of the Migration Act 1958 (Cth) ("the Act"). Their applications were refused by a delegate ("the delegate") of the Minister for Immigration and Multicultural Affairs. They then sought review of that decision by the Tribunal under s 412 of the Act. 3. The Tribunal embarked upon a hearing of the prosecutors' application for review on 21 September 1999. The prosecutors thereafter made complaint about that hearing and a further hearing took place on 19 October 1999. On 16 November 1999, the Tribunal affirmed the decision of the delegate not to grant protection visas. The Tribunal's decision with respect to the male prosecutor was subsequently the subject of judicial review by the Federal Court of Australia which held, at first instance and on appeal, that the Tribunal's decision was not affected by actual bias. 4. In his separate judgment dismissing the male prosecutor's appeal to the Full Federal Court, Marshall J expressed the view that, although actual bias had not been established, "a reasonable apprehension of bias ha[d] been demonstrated."[1] The prosecutors now seek relief with respect to the Tribunal's decision on grounds of apprehended bias and breach of the rules of natural justice; grounds that were not available in the Federal Court[2]. 5. It was held in Re Refugee Review Tribunal; Ex parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice[3]. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established[4]. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process[5]. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings[6]. Moreover – and on this the parties are in substantial agreement – regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. 6. Before turning to the question whether the prosecutors have established apprehended bias or breach of the rules of natural justice on the part of the Tribunal, it is convenient to identify the precise issues upon which the Tribunal's decision ultimately turned. And to do that, it is necessary to outline the basis upon which the prosecutors sought protection visas. 7. The prosecutors claimed before the Tribunal that they feared persecution on the grounds of race and/or political opinion if returned to Sri Lanka. So far as the possibility of persecution on grounds of race is concerned, the male prosecutor is Sinhalese and his wife is partly Tamil, being descended from a Sinhalese father and a Tamil mother. The prosecutors claimed that, because of the female prosecutor's ethnicity, they were perceived to be supporters of the Liberation Tigers of Tamil Eelam ("the LTTE"). They claimed that they had, on that account, been subjected to hurtful remarks and other harassment from their neighbours. Moreover, they claimed that the male prosecutor, who worked for Airlanka, had come under suspicion when the airline's water supply was poisoned and, again, when one of its laptop computers was stolen. 8. The attitude of their neighbours and the suspicions which were said to attach to the male prosecutor with respect to incidents concerning Airlanka also provided the context in which the prosecutors claimed that they feared persecution on political grounds if returned to Sri Lanka. In this regard, they claimed they would suffer at the hands of Sri Lankan authorities because they either knew or believed that they, the prosecutors, had rendered assistance to the LTTE. Further, the prosecutors claimed that, if returned to Sri Lanka, the LTTE would force them to render assistance in the future, it being said in the male prosecutor's application that he was sure that "the LTTE will take the maximum out of me until the end of me." 9. A critical aspect of the prosecutors' claim that they feared persecution on political grounds was their assertion that they had, in fact, assisted the LTTE by providing accommodation for some of its members and, also, by furnishing it with information as to flights and flight patterns which the male prosecutor was able to obtain through his employment with Airlanka. Assistance with respect to accommodation was provided, it was said, because the LTTE had detained the female prosecutor's mother. Later, according to the male prosecutor, he was asked to provide other assistance. To support his account, the male prosecutor produced to the Tribunal two letters written under the letterhead of the LTTE. The first letter concerned the provision of accommodation and the other requested further assistance. 10. The Tribunal accepted that "the [prosecutors] may have suffered some harm because the [female prosecutor was] part Tamil ... [but not] such serious or significant harm as to amount to persecution". Accordingly, the Tribunal was not satisfied that there was a real chance that, if returned to Sri Lanka, the prosecutors would be persecuted on grounds of race. 11. The Tribunal's reasons for rejecting the prosecutors' claims with respect to persecution on grounds of political opinion were primarily based on its rejection of their claim to have assisted the LTTE. In this regard, the Tribunal stated: