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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - alleged procedural unfairness and bias - whether RRT hearing conducted at an unreasonable time - whether presiding member gave applicant a sufficient opportunity to present his claims - whether the applicant was overborne - whether the RRT acted in good faith - whether the RRT breached an inviolable precondition to the exercise of its jurisdiction.

WAFJ v Minister for Immigration [2002] FMCA 249 (8 November 2002)

WAFJ v Minister for Immigration [2002] FMCA 249 (8 November 2002)
Last Updated: 19 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFJ v MINISTER FOR IMMIGRATION
[2002] FMCA 249



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - alleged procedural unfairness and bias - whether RRT hearing conducted at an unreasonable time - whether presiding member gave applicant a sufficient opportunity to present his claims - whether the applicant was overborne - whether the RRT acted in good faith - whether the RRT breached an inviolable precondition to the exercise of its jurisdiction.



Migration Act 1958 (Cth), ss.36, 420, 425, 474

Craig v South Australia (1995) 184 CLR 163

Mazhar v Minister for Immigration (2000) 183 ALR 188

Minister for Immigration v Eshetu (1999) 197 CLR 611

NAAV v Minister for Immigration [2002] FCAFC 228

NAEB v Minister for Immigration [2002] FCA 1092

NAIN v Minister for Immigration [2002] FMCA 177

WADK v Minister for Immigration [2002] FMCA 175

WAEF v Minister for Immigration [2002] FCA 1121

Wu v Minister for Immigration [2002] FCA 1242

Zahid v Minister for Immigration [2002] FCA 1108

Applicant:
WAFJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ84 of 2002



Delivered on:


8 November 2002



Delivered at:


Sydney, via videolink to Perth



Hearing Date:


20 June 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Ms L B Price



Counsel for the Respondent:


Mr A A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



THE COURT DECLARES THAT:

(1) The decision of the Refugee Review Tribunal made on 6 March 2002 is invalid and of no effect.

THE COURT ORDERS THAT:

(1) The parties have liberty to apply for further orders on three days notice.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ84 of 2002

WAFJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant is a citizen of Iran who arrived in Australia on 25 March 2001. He seeks an Australian protection visa. In October 2001 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs ("DIMIA") under the Migration Act 1958 (Cth) ("the Migration Act"). On 12 November 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 21 November 2001 the applicant applied for review of that decision. The application before this Court is to review the decision of the Refugee Review Tribunal ("the RRT") made on 6 March 2002 to affirm the decision of the delegate not to grant a protection visa.

2. The issue to be resolved in these proceedings is whether the hearing before the RRT was conducted fairly and, if not, whether that unfairness provides a ground of review in the face of the privative clause in the Migration Act. In particular, the issue is whether the time at which the hearing was conducted, and the manner in which the hearing was conducted, supports a claim of a lack of good faith or otherwise constitutes a reviewable jurisdictional error.

Background

3. The applicant's claims are set out in the reasons for decision of the RRT and I do not need to repeat them in detail here. Briefly, the applicant claims that he was persecuted in Iran as a result of his chosen occupation as a singer. He claims that he was persecuted by fanatical Islamists and the Iranian security service because he chose secular themes for his songs. He also claims to have written poetry against the regime in Iran. The applicant further claims that he has converted to Christianity and that his family was subject to mistreatment because his father was a monarchist who was killed in 1980. The applicant's claims were not found to be credible by the RRT, which referred extensively to country information about the increasing freedom in Iran for people to play and listen to secular music. The RRT found the applicant not to be a credible witness. The RRT found that the applicant would not suffer persecution if he returned to Iran and that the applicant therefore did not have a well founded fear of persecution. The RRT concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees' Convention. The RRT concluded that the applicant does not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.

4. The application was heard by me on 26 June 2002 on the basis of the application for review, filed in the Federal Court on 12 March 2002. The grounds of complaint set out in that application were that to allow the decision of the RRT to stand would be wrong and would deny the applicant a visa; that the decision involved an error of law and that there was no jurisdiction to make the decision; and that the Migration Act did not permit the making of the decision. The applicant also filed written submissions on 25 June 2002. He represented himself at the hearing before me. The applicant asserted that he was accused of lying several times by the presiding RRT member and submitted that he was hurt and nervous and lost self reliance so that he could not express himself properly. The applicant asserted that the conclusions reached by the RRT from country information were wrong and inconsistent with that country information. The applicant also asserted that the RRT misunderstood country information about the freedom of singers in Iran. The applicant further asserted that the RRT misunderstood the evidence presented by him.

5. Importantly, at the hearing on 26 June 2002 the applicant asserted that the hearing conducted by the presiding member of the RRT was procedurally unfair and that the presiding member was biased against him. I was invited to listen to the tape recordings of the hearing conducted before the RRT. I agreed to do so and adjourned proceedings for that purpose. I indicated at that time that I might need to resume the hearing, depending on what the tapes revealed.

6. I did not resume the hearing but instead invited written submissions from the parties. Mr Jenshel, who appeared for the Minister, provided supplementary written submissions on 4 July 2002 and on 12 July 2002. These covered issues raised by me in the course of the hearing.

7. I also approved pro bono representation for the applicant to prepare written submissions, and written submissions were filed by Ms L B Price for the applicant on 2 September 2002. It is appropriate that the Court recognise the contribution to the fair and efficient administration of justice made by Ms Price in agreeing to represent the applicant on this basis. Mr Jenshel provided further written submissions in reply to Ms Price's written submissions and those were filed on 8 October 2002.

Consideration and findings

8. The matters raised in the original application for review and in the written submissions prepared by the applicant himself and filed on 25 June 2002 cannot sustain the application for review. That application as framed and elaborated upon in the applicant's written and oral submissions failed to substantiate the allegation of bias. The allegation of procedural unfairness cannot assist the applicant in the face of the privative clause: Migration Act, s.474. The other matters raised amount to no more than an invitation to this Court to exercise merits review. The applicant asserts errors of fact on the part of the RRT but those errors, even if established, do not constitute a reviewable error of law. However, I permitted Ms Price to file an amended application on 2 September 2002 after she had listened to the tapes of the RRT hearing. The amended application raises an issue of substance. The amended application asserts that the RRT erred in failing to extend procedural fairness by:

a) a breach of the hearing rule; and

b) apprehended or actual bias.

9. In addition, the amended application asserts that the RRT failed to comply with statutory requirements in the exercise of jurisdiction and:

a) act in accordance with substantial justice and the merits of the case - s.420(2)(b) of the Migration Act; and

b) permit the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review - s.425 of the Migration Act.

10. The amended application seeks declaratory relief and relief in the nature of mandamus and certiorari, plus costs.

11. The written submissions prepared by Ms Price are both lengthy and detailed. She submits that the errors of law asserted in the amended application are demonstrated by the audio record of the RRT hearing on 18 December 2001 and the materials in the court book between pages 78 and 148 inclusive. I was invited to listen to the whole of the audio record of the RRT hearing (three audio cassettes were provided and the audio record comprised two of them). Based upon the submissions made by Ms Price and my own assessment of the audio record, I accept that there are some issues of concern relating to the conduct of the hearing by the presiding member.

12. The following matters merit consideration. First, the hearing commenced at 10.40am Eastern Australian Summer Time in Sydney but the applicant was required to attend by videolink from the Port Hedland Detention Centre in Western Australia. The local time when the applicant was required to attend was 7.40am. It is, to say the least, highly unusual to expect a litigant to attend legal proceedings at such an hour. We are dealing here with administrative proceedings but the issue is of no less significance in such proceedings. Secondly, the applicant initially had trouble hearing because of construction work taking place outside the room in which he was placed. This proved to be only a temporary obstacle because the construction work ceased upon request. Thirdly, at an early stage, the applicant showed agitation. The presiding member did offer the applicant an adjournment to another occasion but the applicant said that he wished to proceed. Next, the hearing proceeded largely by the presiding member asking questions and the applicant responding to them. When the applicant sought to address the presiding member at some length the presiding member interrupted him, asking him to answer questions rather than reciting what he had prepared. Next, there was an interruption to the hearing when the applicant became agitated. This occurred when the presiding member challenged the applicant's view of the oppression of musical performers in Iran. The hearing resumed when the applicant apologised to the presiding member. Again, the applicant was interrupted by the presiding member when he strayed from issues that the presiding member wished to hear about. The presiding member indicated to the applicant that he wished to get information in the order that he wanted the information. The applicant was questioned in rather laborious detail, more akin to cross-examination in adversarial proceedings. In particular, the applicant was told by the presiding member at one stage, when dealing with his religious beliefs, just to answer "yes" or "no" in answer to his questions.

13. It is apparent from the audio record that the presiding member had difficulty accepting the truth of what he was being told by the applicant. In particular, the presiding member appeared to disbelieve what the applicant was saying about the time he spent in internal exile. The applicant had told the presiding member that he kept to himself while detained in internal exile and said little to other detainees that might have revealed the reasons why others had been exiled. The presiding member said at this point:

You are making it unbelievable that you sat for one and a half months without talking, because it seems to me that you love to talk, all the time. I find it impossible to believe.

The applicant responded:

It wasn't that I wasn't talking - you asked me about their offences - I had not discussed...

The presiding member intervened and said:

Let's go back and clarify that - keep quiet for a minute and answer the questions rather than continue to talk.

14. I agree with the observation of Ms Price in her written submissions on page 8 that at this point the applicant had been speaking normally. The presiding member, suddenly and inexplicably, announced that he would adjourn for 10 minutes. The applicant attempted to say something further and the presiding member intervened again saying:

If you want to behave properly we will continue with the hearing and if you don't then let your adviser know and we will stop the hearing. ... At that time discuss with your adviser whether you want to continue today and behave in a civil manner or not.

15. The applicant then appeared to speak normally and the interpreter translated:

He wants to continue giving answers.

The presiding member responded:

I don't want to listen to what you want to say - speak to your adviser first.

16. The hearing was then adjourned at 1.05pm and resumed at 1.20pm at which time the applicant again apologised to the presiding member.

17. It is not apparent to me why the applicant felt the need to apologise. He may have been advised to do so during the adjournment. It is not apparent to me from the audio record that the applicant had done anything to apologise for. It is apparent to me from the audio record that the presiding member had become increasingly agitated by the applicant seeking to expand upon answers that had been requested from him by the presiding member. The hearing then continued with the presiding member periodically interrupting the applicant as he responded to questions to ask him to keep his answers short or inviting him to shorten his responses. The hearing concluded at 2.05pm Australian Eastern Summer Time.

18. Ms Price describes the manner of the presiding member as "brusque, short, sharp, imperious at times, discourteous at times and lacking in any empathy or sensitivity to the task that he was undertaking". I do not accept that description. The presiding member was formal, reserved, somewhat rigid in his approach, and at one point, apparently irritated. Ms Price also notes, and I agree, that it seems that the presiding member was using a computer keyboard throughout the proceedings in order to note down the applicant's answers to his questions. I formed the view from the audio record of the proceedings that the presiding member had a pre-determined view of the enquiries that he needed to make, and was preparing himself a record of the proceedings in accordance with the structure of the case that he had in mind.

19. Ms Price submits that the manner in which the hearing was conducted by the presiding member amounted to a denial of procedural fairness in that the applicant was not given a reasonable opportunity to make relevant submissions and to give evidence. She asserts that this is not merely a breach of common law requirements but also amounts to a breach of the requirements of s.425 of the Migration Act which provides:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

20. Perhaps more significantly, Ms Price submits that the manner in which the hearing was conducted by the presiding member demonstrates apprehended or actual bias in that it indicates that the presiding member exhibited a closed mind to the issues raised by the application, or prejudged the case such that the RRT was unwilling or unable to decide the case impartially. She also submits that the hearing was conducted unfairly in breach of s.420(2)(b) of the Migration Act and that both that provision and s.425 are inviolable preconditions to the exercise of power by the RRT, a breach of which will invalidate a decision of the RRT.

21. In his written submissions filed on 4 July 2002, Mr Jenshel submits that bad faith cannot be inferred from the record of the RRT proceedings. Mr Jenshel submits that the RRT, as an inquisitorial body, is entitled to test the applicant's evidence, interrupting the applicant's answers, and advising the applicant if a point is not believed, persisting in its questions and using direct language if necessary. He submits that an attempt to show bad faith by dissecting the transcript of a hearing that may [and, indeed, did] last some hours, pointing to particular exchanges between the member and the applicant is wrong in principle. He submits that this approach fails to give due credit to the text of the decision itself and the reasons behind the rejection of the applicant's claims. He submits that the whole of the proceedings must be considered.

22. In his submissions filed on 12 July 2002, Mr Jenshel submits that an asserted failure to comply with s.420(2)(b) cannot be a basis of judicial review, particularly having regard to the terms of s.474 of the Migration Act (the privative clause). He further submits that the High Court decision in Eshetu v Minister for Immigration (1999) 197 CLR 611 establishes that s.420(2)(b) does not confer a right of action on an applicant.

23. In his submissions filed on 8 October 2002, Mr Jenshel deals with the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. He submits that that decision establishes that the effect of the privative clause is to immunise from judicial review decisions that may involve a breach of the rules of procedural fairness under the general law or involving a breach of express procedural requirements contained in the Migration Act or decisions which might be infected by what may be described as a general jurisdictional error. Mr Jenshel submits that the effect of the decision of the Full Federal Court in NAAV is that the privative clause expands the executive power to authorise the making of decisions by the RRT subject only to the so called Hickman provisos. Mr Jenshel concedes that it is also apparent from the decision of the majority in NAAV that there are, in addition, some inviolable limitations upon decision making power in the Migration Act which were referred to by the majority in that case.

24. Mr Jenshel also concedes that it is open to the applicant to argue as a ground of review that the decision of the RRT was not a bona fide attempt to exercise the decision making power inferred upon it. He submits the following, however, in relation to that element of the Hickman provisos:

(a) the absence of bona fides is able to be proved other than by perusing the fact of the record. However, proof of bad faith necessitates proof of extreme circumstances. It is a serious allegation which should not be made lightly;

(b) where an exercise of power is based upon a fact which the decision maker knows not to be true, there is no bona fide exercise of the power. The same may be true if the decision maker considers that there is not a substantial possibility that the fact is true;

(c) a lack of bona fides has been associated with dishonesty or action which is in some way "contrived or colourable";

(d) the making of a decision for an improper purpose could reveal a lack of bona fides in the attempt to exercise power;

(e) an exercise of power is not lacking in bona fides where the decision maker was of the view that the decision could be correct, even if there is some measure of uncertainty about the position;

(f) an exercise of power which is wrong in fact or law is not, by that feature alone, an attempt to exercise power that is lacking in bona fides;

(g) an appearance of bias (as opposed to a finding of actual bias) does not make establish a lack of a bona fide attempt to exercise power.

25. Mr Jenshel submits finally that in the present case, a fair listening of the whole of the RRT proceedings in this case discloses that the RRT did afford a fair hearing to the applicant and reached its decision in good faith.

26. The decision of the Full Federal Court in NAAV has been considered in this Court and in the Federal Court on several occasions. I considered it in NAIN v Minister for Immigration [2002] FMCA 177 and in WADK v Minister for Immigration [2002] FMCA 175. The decision was considered in detail by his Honour Sackville J in Zahid v Minister for Immigration [2002] FCA 1108 and his Honour's interpretation has itself been supported by the Full Federal Court NABM of 2001 v Minister for Immigration [2002] FCAFC 294. It is clear from both the decision of the majority in NAAV and from the assessment of that decision by Sackville J in Zahid that general law grounds of procedural fairness will not provide a ground of review of a migration decision in the face of privative clause. Further, the general grounds upon which an error of law amounting to a jurisdictional error can be established on the authority of Craig v South Australia (1995) 184 CLR 163 are not sufficient. Sackville J refers to the decision of his Honour Justice von Doussa in NAAV at paragraph 642 where his Honour said that a:

...privative clause decision will exceed the lawful authority and powers of a decision maker only where jurisdictional factors essential to the enlivenment of the authority and powers of the decision-maker are absent.

27. His Honour concluded that s.474 of the Migration Act protects a decision of a review tribunal against invalidity subject only to the Hickman provisos and jurisdictional prerequisites. Sackville J drew the following conclusion at paragraph 84 in Zahid:

Provided that the "jurisdictional factors" or inviolable limitations are not infringed and the three Hickman provisos are satisfied, s.474(1) expands the authority and powers of the decision maker to render the decision lawful...

28. In my opinion, it is open to the applicant in these proceedings, in the light of the decision in NAAV and Zahid to argue that the decision of the RRT is vitiated on the following grounds:

a) a failure on the part of the RRT to make a bona fide attempt to exercise the powers conferred on it; and

b) a breach of an inviolable pre condition to the exercise of power by the RRT contained in the Migration Act.

29. In WADK v Minister for Immigration I found that s.420(2)(b) is such an inviolable pre condition to the exercise of power. At this stage, although I understand that decision is subject to an appeal, my view has not been found to be wrong and I am not persuaded by Mr Jenshel's submissions that I should change my opinion. I regard s.420(2)(b) as a jurisdictional pre requisite because it establishes a fundamental and overarching principle to guide the RRT in all cases. It is in my view a mistake to regard the making of a valid review application as the only jurisdictional prerequisite to the exercise of power by the RRT and I do not read the decision in NAAV as establishing that. In particular, too much has been read into what von Doussa J says at paragraph 639 of NAAV. His Honour deals with the issue more generally and more completely at paragraphs 625, 667 and 672. In addition, his Honour's views need to be read in the light of the judgment of the Chief Justice, in particular at paragraph 15 in order to arrive at an authoritative statement of principle. The making of a valid review application simply enlivens the general jurisdiction of the RRT to deal with the application. The hearing and determination of the application is subject to s.420(2)(b). The grant or refusal of a visa is subject to s.65.

30. It is arguable that s.425 is likewise an inviolable precondition to the exercise of power by the RRT. The observations of von Doussa J in NAAV at paragraph 672 present an obstacle to that argument. It is not necessary for me to reach a decision on that in these proceedings as the obligation in that section is to invite the applicant to appear. I accept Ms Price's submission that the invitation to appear must be more than a hollow shell or empty gesture: Mazhar v Minister (2000) 183 ALR 188 per Goldberg J at paragraph 31. I do not accept the submission from Ms Price (if such was intended) that an inviolable fair hearing rule importing general law requirements can be derived from that provision. The RRT met its obligation under s.425 by inviting the applicant to appear. The hearing provided was plainly more than a hollow shell or empty gesture. In my opinion, the only basis upon which it is open to the applicant to disturb the decision of the RRT in these proceedings is if I could be satisfied that the manner in which the proceedings were conducted by the presiding member established either a breach of s.420(2)(b) of the Migration Act or established a lack of a bona fide attempt to exercise the RRT's power, or both.

31. I accept in general terms the submission made by Mr Jenshel that the RRT is entitled to a reasonable degree of latitude in the conduct of inquisitorial proceedings. The RRT is entitled to control unruly applicants and, in general terms and subject to the Migration Act, to adopt its own procedures for the conduct of proceedings. A court exercising powers of judicial review should not adopt a precious attitude when considering the procedures followed by the RRT or the manner adopted by the presiding member. Nevertheless, in my view, the audio record of the proceedings before the RRT establishes that the proceedings were unfair. The commencement of the hearing at 7.40am local time in Port Hedland I regard as extraordinary in the absence of a clear explanation (and there is none). The commencement of proceedings at such a time is almost guaranteed to place stress upon a litigant. If that were not bad enough the applicant was placed in a room in which he initially could not hear properly because of construction noise. It is little wonder that the applicant appeared agitated. The presiding member did give the applicant the opportunity to seek an adjournment and the applicant did elect to proceed. However, the applicant was subsequently repeatedly interrupted and prevented by the presiding member from putting forward his case in his own way. The RRT is an inquisitorial body and it is entitled to put questions to applicants, but it is necessary that applicants have a reasonable opportunity to present to the RRT that which they wish to present. The manner in which the presiding member conducted these proceedings contributed to the agitation of the applicant and inhibited him from presenting his case.

32. In addition, the presiding member himself became agitated when the applicant sought to press his submissions rather than giving simple answers to questions. The presiding member appeared to become irritated at one point and then adjourned proceedings until the presiding member was satisfied that the applicant would "behave himself". At that point, there is nothing to suggest from the audio record that the applicant was misbehaving. Nevertheless, the applicant seems to have felt compelled to apologise before the proceedings could resume. Also, the presiding member made a sarcastic reference to the applicant "loving to talk" and repeatedly indicated to the applicant that he wished the applicant to keep his responses short. The presiding member wanted to confine the case to the pre-conceived structure that he had in mind, rather than the case that the applicant wanted to present.

33. Taken individually, these issues may not be regarded as matters of major concern. Taken collectively, they establish to my satisfaction that the proceedings were procedurally unfair. The applicant was not given a fair hearing. However, it is clear from the Full Federal Court decision in NAAV that procedural unfairness, while sufficient to invalidate an administrative decision under the general law, is not sufficient to invalidate a migration decision protected by the privative clause. But for the privative clause, I would have set aside the decision of RRT on the basis of the procedural unfairness that I have found. I cannot do so because of the privative clause. In addition, procedural unfairness (apart from bias) does not establish a breach of s.420(2)(b) of the Migration Act: WADK at paragraph 39.

34. The remaining issue is that of bias. In my view a fair minded observer would derive from the audio record a reasonable apprehension that the presiding member would not bring an unprejudiced mind to bear upon the case. I refer in particular to the maters set out at paragraphs 12 to 18 above and the discussion of them at paragraphs 31 and 32 above. Apprehended bias is not the same thing as actual bias. I am not satisfied that the applicant has established that the presiding member was in fact unable or unwilling to decide the case impartially. He did not, in my view, clearly demonstrate a closed mind. However, the circumstances of the proceedings before the RRT are sufficient to establish a reasonable apprehension of bias. An appearance of bias (as opposed to actual bias) does not directly establish a lack of a bona fide attempt to exercise power: WAEF v Minister for Immigration [2002] FCA 1121 at paragraph 34; NAEB of 2002 v Minister for Immigration [2002] FCA 1092 at paragraphs 22-24. I have previously found, however, that a reasonable apprehension of bias is sufficient to establish a breach of s.420(2)(b): WADK v Minister for Immigration at paragraph 38. In addition, a lack of bona fides can be established by proof of the breach of a statutory requirement for the conduct of proceedings before the RRT, whether that requirement be mandatory or merely directory: Wu v Minister for Immigration [2002] FCA 1242 at paragraph 58. I accept that s.420(2)(b) is not part of the statutory code of procedure established by the Migration Act for the RRT. As I have said in earlier cases, however, it is much more than a mere motherhood statement. It establishes an overarching principle to guide the RRT in all cases. The privative clause may have rendered the principle merely directory, but that is enough.

35. In this case, the fact of the time of the commencement of the RRT proceedings, combined with the audio record, leads me to the view that the RRT did not follow the overarching principle required to be followed by s.420(2)(b) of the Migration Act in that the RRT did not act according to substantial justice in the conduct of those proceedings. The finding that I have made that there is a reasonable apprehension of bias in the conduct of those proceedings establishes the failure to afford substantial justice in accordance with s.420(2)(b). In my view, the failure to afford substantial justice amounts not only to a breach of an inviolable limitation upon the power conferred upon the RRT but also establishes a lack of a bona fide attempt to exercise that power. Accordingly, I will grant relief in the form of a declaration. I will give the parties liberty to apply should any further orders be required. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 November 2002
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