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MIGRATION - judicial review - jurisdictional error - procedural fairness - actual bias - whether denial of natural justice deprived applicant of the possibility of a successful outcome - opportunity to call witness before Refugee Review Tribunal [S]

Minister for Immigration & Multicultural & Indigenous Affairsv SGJB [2003]

Minister for Immigration & Multicultural & Indigenous Affairsv SGJB [2003] FCAFC 290 (16 December 2003)
Last Updated: 16 December 2003


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural & Indigenous Affairs v SGJB

[2003] FCAFC 290


MIGRATION - judicial review - jurisdictional error - procedural fairness - actual bias - whether denial of natural justice deprived applicant of the possibility of a successful outcome - opportunity to call witness before Refugee Review Tribunal

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 discussed

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 applied

Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicants S134/2002 (2003) 195 ALR 1 applied

Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 referred to

Re Refugee Tribunal Ex parte Aala (2000) 204 CLR 82 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS

AFFAIRS v SGJB

S 5 OF 2003

GRAY, COOPER AND SELWAY JJ

ADELAIDE

16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 5 OF 2003



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
SGJB

RESPONDENT


JUDGES:
GRAY, COOPER AND SELWAY JJ


DATE OF ORDER:
16 DECEMBER 2003


WHERE MADE:
ADELAIDE




THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 5 OF 2003



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
SGJB

RESPONDENT




JUDGES:
GRAY, COOPER AND SELWAY JJ


DATE:
16 DECEMBER 2003


PLACE:
ADELAIDE





REASONS FOR JUDGMENT
THE COURT:

THE NATURE OF THE APPEAL

1 The appellant is the Minister for Immigration and Multicultural and Indigenous Affairs (`the Minister'). The Minister appeals from an order of a single judge of this Court setting aside a decision of the Refugee Review Tribunal (`the RRT') dated 31 July 2002 affirming the decision of the delegate of the Minister not to grant the respondent a protection visa (class XA) under the provisions of the Migration Act 1958 (Cth) (`the Act'), and remitting the matter for re-hearing according to law.

2 The learned primary judge set aside the RRT's decision on the ground of actual bias on the part of the RRT against the applicant before the RRT, who is the respondent to the present appeal. Part of the conduct relied upon by the learned primary judge in coming to this view as to actual bias was conduct on the part of the decision-maker which led to the respondent agreeing not to call as a witness a Mr Chohaili when the respondent had previously indicated that he wished the witness called to give evidence on his behalf to the RRT. His Honour regarded the conduct as constituting a denial of procedural fairness which, but for the privative clause, s 474 of the Act, would have constituted reviewable jurisdictional error. His Honour came to this decision having regard to the decision of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [648].

3 The Minister appealed against the findings of an absence of good faith and actual bias on the part of the RRT. The Minister also appealed against findings of fact and inferences drawn by the learned primary judge to sustain the conclusion that the respondent had been denied procedural fairness in respect of the calling of Mr Chohaili as a witness.

4 Subsequent to the judgment of the learned primary judge, the High Court of Australia delivered its judgments in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (`S157') and Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicants S134/2002 (2003) 195 ALR 1 (`S134').

5 In S157, the Court held that a decision flawed for reasons of a failure to comply with the principles of natural justice was not a `privative clause decision' within the meaning of s 474(2) of the Act: 195 ALR at [38], [83]; see also S134 at [15], [61].

THE CIRCUMSTANCES OF THE RESPONDENT

6 The respondent is a twenty-five year old Iranian man. He is a member of the Sabian Mandaean faith. Sabian Mandaeans constitute a small religious minority in Iran and many live in the Ahwaz in the Province of Khuzistan.

7 The respondent claimed protection in Australia on the basis of a well-founded fear of persecution on religious and ethnic grounds. The respondent's claim for a protection visa was refused by a delegate of the Minister on 5 June 2001. He sought review from the RRT. On 27 August 2001, the RRT affirmed the decision of the delegate (`the first decision'). The respondent sought judicial review of the first decision in this Court. O'Loughlin J granted the application and remitted the matter to the RRT for further consideration according to law.

8 By letter dated 7 July 2002, the respondent received an invitation to attend a hearing in respect of his application for review. The hearing was to be held at the Woomera Court House in Woomera, South Australia at 1.30 pm on 24 July 2002. The letter advised that the hearing was to be by video conference, with the RRT member and the interpreter in Melbourne, Victoria. The letter instructed the respondent to complete the `Witnesses' part of the form if he wanted the Tribunal to get oral evidence from another person.

9 On 9 July 2002, the respondent completed the `Response to Hearing Invitation', indicating that he had an adviser named Erin Penton of Macpherson and Kelly Solicitors, and that he wanted evidence taken from Mr Khosrow Chohaili. The evidence it was proposed that he give concerned the situation of Sabian Mandaeans in Iran.

10 On 16 July 2002, a deputy registrar of the RRT wrote to Macpherson and Kelly concerning the respondent's application for review. The letter contained the following:

`On the returned Hearing Response form your client has stated he wishes to present a witness in Sydney to give oral evidence by telephone. We enclose a copy for your reference. The Tribunal requests that a detailed statutory declaration from the witness be presented so that the Tribunal can determine if it is necessary to take oral evidence. As the hearing is scheduled for 24 July 2002, please return the statutory declaration by c.o.b. on Monday 22 July 2002.'
11 Mr Chohaili was the President of the Mandaean Association of Australia. He prepared a signed statement dated 16 July 2002. That statement was forwarded by Messrs Macpherson and Kelly to the RRT under cover of a facsimile dated 10 July 2002. The facsimile requested that the RRT `advise as soon as possible whether you also require Mr Chohaili to provide oral evidence.' The RRT did not respond to this request.

12 The respondent claimed persecution because of his religious beliefs, and as a member of the Mandaean community generally. The respondent also claimed a well-founded fear of persecution based upon a relationship which he claimed with a Muslim girlfriend in Iran and his fear of persecution because of that relationship at the hands of her family if he returned. In his statement to an interviewing officer of the Department of Immigration and Multicultural Affairs given on 7 April 2001, he stated:

`3. WHY DID YOU LEAVE YOUR COUNTRY OF NATIONALITY (COUNTRY OF RESIDENCE)?
I am from a minority religious group (Sabian). I had a Muslim girlfriend. We were contemplating marriage. My religion was an obstacle. Her family found out. The family were outraged saying that Sabian were "not clean" being involved with their daughter. This was humiliation for the family. To remedy this they said both should die. Who said both should die? Her Father and brother. Her brother threw her from the balcony (2� m) - she broke her hip. When? 3 weeks before I departed Iran. Before this my girlfriend warned me about her family. She said I should leave the town. I went home and told my family. I left my family home and stayed with my uncle.

Then my girlfriend's family (her father and 3 brothers) went to my home and beat up my mother.

I said to my uncle that I had to leave. We found a smuggler and I left.

What happened to your girlfriend? When I left she was in hospital. I don't know where she is now.

I don't know what has happened to my family either.

4. WHY DID YOU CHOOSE AUSTRALIA AS YOUR DESTINATION?

Because lots of our people here. Our religious leader is here.

5. DO YOU HAVE ANY REASONS FOR NOT WISHING TO RETURN TO YOUR COUNTRY OF NATIONALITY (RESIDENCE)?

My life is in danger. Because the family believe that only bloodshed will help the family's humiliation.

The govt won't protect us because I am Sabian and have no rights. As a Sabian we are constantly being humiliated by people. They try and make us convert to Islam. They also break our windows. I live in fear.'

(Original emphasis)

13 In his statement, Mr Chohaili dealt generally with the position of Mandaeans in Iran. His statement also contained the following in respect of the respondent's claims:

`Mandaeans in the Mandee had been entirely minding their own business and had not be [sic] infringing upon Islam or Islamic institutions and still they met with great interference from Iranian Islamists who control the Iranian State. It is beyond all reasonable doubt that an instance where a once clandestine relationship between a Mandaean man and a Muslim woman which was subsequently discovered would place the Mandaean man's life in grave danger. Furthermore, that it is conceivable for those who have actually lived in the Islamic Republic of Iran that a relationship can remain a secret between its two parties for a long period of time, even for as long as three years. ...
...

The events stated in Mr [SGJB's] claims are entirely plausible and factually acceptable to me. The claims do not fall outside of the proven claims of persecution against members of the Mandaean faith. They are not offensive to the evidential information about persecution of religious minorities in Iran gathered by independent organizations and governmental bodies such as Amnesty International, HRW, the U.S. State Department, and various bodies of the United Nations, including the UNHCR.

I have full confidence in supporting the claims by Mr [SGJB] and am happy to appear as an expert witness should that be required.'

14 The respondent did not know that Mr Chohaili had given a statement until advised of that fact in a telephone conversation with Mr Chohaili. He was not given a copy of the statement until part way through the hearing on 24 July 2002.

15 On 24 July 2002, the hearing took place. It was conducted by video conference. The respondent was not represented at the hearing.

16 The hearing before the RRT was recorded and a transcript of the recording was before the learned primary judge. His Honour sets out the relevant parts of it in his reasons for decision. The setting out of the transcript has removed the respondent's name as requested by s 91(x) of the Act. The transcript was as follows:

`[THE APPLICANT]: I have --- had a witness - is the witness going to be contacted?
INTERVIEWING OFFICER: I'll come to your witness in a minute. No, I haven't contacted him, but I have got a statement from him - I'll come to that in a minute."

...

INTERVIEWING OFFICER: ... when you said you wanted him for a witness I wrote to him asked him could he send a written statement first, and he responded by saying he found your case plausible. He says you're at risk of being killed, and then he gives some general information about, or general opinions about, what happens to Mandayians (sic) in Iran.

[THE APPLICANT]: (in...)

INTERVIEWING OFFICER: I didn't think there was any real point in asking him to come along and give oral testimony because he's - I think he's already said what he needs to say in writing.

[THE APPLICANT]: Yes. Thank you.

INTERVIEWING OFFICER: Have you seen the statement that he sent on your behalf?

[THE APPLICANT]: No, I don't.

INTERVIEWING OFFICER: okay, well, I'll get ... [an RRT employee] to copy it and we'll send it to you and then I'll wait for sometime after this hearing so you can - if you need to add to it you can.

[THE APPLICANT]: The night I spoke to him on the telephone I knew that he has sent (in...) but I haven't seen the statement - the actual statement.

INTERVIEWING OFFICER: Well in effect (in...) he gives opinions about Mandayians (sic) in general that you've given already that all, you know, all Mandayians (sic) are at risk of persecution and they are seen to be unclean and they can't go to universities and the Church is being closed down - many of the things you've said already."

...

INTERVIEWING OFFICER: (in.) so you don't need to look over it today, I'll wait, I'll give you the time until I'm, I'll have a look at it myself.

[RRT EMPLOYEE]: So as long as he gets it - do you want to get it out during the (in ...) or?

INTERVIEWING OFFICER: Yes, well - just send - ring them up and tell them it's coming.

[RRT EMPLOYEE]: Yep.

INTERVIEWING OFFICER: And the applicant needs it. But he doesn't need to read - you don't - I've just started arranging for this statement to be sent to you. You don't need to read it today before the hearing finishes.

[THE APPLICANT]: (in ...)

INTERVIEWING OFFICER: It's written in English. Do you understand English?

[THE APPLICANT]: No, not very much.

INTERVIEWING OFFICER: So, have you got anyone there that can help you with it?

[THE APPLICANT]: (in ...)

INTERVIEWING OFFICER: Yes, - it doesn't say anything adverse about you, it's all in your favour so it's not going to prejudice you, but if you have a witness you actually should know what they're saying about you.

[THE APPLICANT]: Thank you.

INTERVIEWING OFFICER: And in regard to your personal circumstances, he doesn't say much other than that he says the opposite opinion that your story is plausible and that your life could be in danger.

[THE APPLICANT]: That I ask him only to testify in a matter of - in a religious matter, not on my personal or on an individual basis.

INTERVIEWING OFFICER: Yes, well he's done that, he's - he's (in ...) general observations or he's given general opinions (in ...)"

...

INTERVIEWING OFFICER: Oh, okay. Well it's in English so you might you might want to put it aside. As I said, it doesn't say anything bad about you so it doesn't say anything against you. ... You don't have to worry that it's got adverse information.

[THE APPLICANT]: (in ...)

INTERVIEWING OFFICER: "I'll wait until Monday to give you an opportunity of - between now and Monday to have a look at it and if you if you feel like you need to say anything else then you'll have time then.

[THE APPLICANT]: Thank you. Thank you for the opportunity you are giving me. (in ...).

INTERVIEWING OFFICER: Yes?

... we've got an interpreter here that (in ...) he can read the (in ...) adjournment for 10 minutes.

INTERVIEWING OFFICER: Oh, you've got one now?

Yes.

INTERVIEWING OFFICER: Oh, okay. (in...) They've got an interpreter there who can read that to him. It will just take 10 minutes."

...

INTERVIEWING OFFICER: Yes, yes, we haven't - we haven't finished yet, I just - while the interpreter's there I want to give you the opportunity to know what Mr Chahaylee said about you.

[THE APPLICANT]: Thankyou.

INTERVIEWING OFFICER: So don't worry we haven't finished. You'll get - you'll get the opportunity to say whatever you like.

HEARING OFFICER?: (in ...)

INTERVIEWING OFFICER: Oh whatever's easiest for - you know - whatever's easiest. It's not a matter of ---.

HEARING OFFICER: It doesn't need to be taped?

INTERVIEWING OFFICER: No, not necessarily.

HEARING OFFICER: Okay. Thank you. The hearing is now (in...).

INTERVIEWING OFFICER: You can have a break if you like (in ...).

INTERPRETER: Sorry?

INTERVIEWING OFFICER: Understand what your witness said on your behalf?

[THE APPLICANT]: Yes I do.

INTERVIEWING OFFICER: And you are satisfied that he - you don't need for him to come and give oral evidence here?

[THE APPLICANT]: No, that's fine thankyou very much.

INTERVIEWING OFFICER: So is that what you expected him to say on your behalf?

[THE APPLICANT]: Yes.'

17 The RRT delivered its decision and reasons on 31 July 2002. So far as presently relevant, it stated:

`The Tribunal accepts that the Applicant is a national of Iran. He satisfies that element of the definition of refugee that requires he be outside his country of nationality. It accepts that he is a Mandaean and that he has subjective fears of persecution but, for the reasons set out below, is not satisfied those fears are well-founded.
As a preliminary issue, the Applicant requested that Khosrow Chohaili, President of the Mandaean Association of Australia, give oral evidence on his behalf. The Tribunal asked that Mr,[sic] Chohaili first provide a written statement before it determined whether or not his presence at the hearing was required. His written statement is a commentary on the situation for Mandaeans in general; opinions that statements by successful Iranian Mandaean asylum seekers should be accepted as factually correct; and an opinion the Applicant's claims are plausible and that his life would be in [d]anger because his relationship with a Muslim girl had been revealed. The Applicant had not seen the statement and it was interpreted for him during the hearing. He told the Tribunal he had never met or spoken directly with Mr. Chohaili and that he was satisfied that Mr. Chohaili had adequately expressed his views in writing and did not need to provide oral evidence.

To summarise the reasons and conclusions that follow, the Tribunal found that the Applicant embellished or fabricated aspects of his evidence, particularly those related to his relationship with a Muslim girl. It is satisfied that he, and others speaking on his behalf, have exaggerated the situation for Mandaeans in Iran, even if they have unwittingly done so. While it accepts that Mandaeans, including the Applicant, encounter some discrimination, it does not accept that the Applicant faces a real chance of persecution for reason of his religion or membership of a minority ethnic group. Nor does it conclude that the making of a refugee application gives rise to a real chance of persecution for reason of an imputed dissident political opinion, even though it may be known by Iranian authorities that the Applicant has made such an application and has criticised the authorities, and even when the consequences of making an application for asylum is considered in combination with the Applicant's other claims.

...

The Tribunal is satisfied that the Applicant fabricated his account of a relationship with a Muslim woman and the consequences of that relationship, and gives it no weight. It is also satisfied that he has embellished aspects of his account of harassment of himself and other Mandaeans in Iran and his witness has understandably sought to corroborate his evidence, although he largely provided a commentary about the general situation for Mandaeans in Iran. It concludes that, while Mandaeans are the victims of some discriminatory government policies and might encounter some insults and abuse from time to time, the Applicant has not been persecuted in the past and does not face a real chance of persecution in the reasonably foreseeable future, for reasons associated with being a Mandaean.'

18 Dealing with the issue of procedural fairness, the learned primary judge said:

`[86] In my view, the effect of the evidence at the oral hearing to which I referred at [37] to [41] above, supports Mr Barrett's submission that the RRT persuaded the applicant that it was unnecessary for Mr Chohaili to give oral evidence.
[87] The RRT said:-

"He told the Tribunal he had never met or spoken directly with Mr Chohaili and that he was satisfied that Mr Chohaili had adequately expressed his views in writing and did not need to provide oral evidence."

I do not think this is an accurate statement. The applicant's evidence was that he had spoken by phone to Mr Chohaili although it is true that he had not met him. The statement that the applicant was satisfied that Mr Chohaili "had adequately expressed his views in writing" were not the applicant's words, although he did agree, in answer to a leading question, that he did not need the witness to give oral evidence, see at [41].

[88] It seems to me that the passages which I have quoted from the transcript indicate that the RRT member gave the applicant the impression, not only that Mr Chohaili's evidence was favourable but also that the evidence would be accepted.

[89] The question which then arises is whether, prior to making a finding that it did not accept Mr Chohaili's evidence, the RRT came under an obligation of procedural fairness to give the applicant notice of its intention to make that finding and to provide him with an opportunity to put submissions against it.

[90] A decision as to whether a person is to be granted a protection visa affects the person's rights, interests and expectations. The rules of procedural fairness apply unless they are excluded by plain words of "necessary intendment" in the Act; see Annetts v McCann (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [90], [126] and [171] - [172].

[91] Division 4 of Part 7 of the Act deals with the conduct of a review by the RRT. There are two provisions of Division 4 which need to be considered in this factual context in order to determine whether the Act excluded any common law obligation of procedural fairness in relation to the RRT's findings about Mr Chohaili's evidence.

[92] Section 424A(1) provides that the RRT must give to an applicant particulars of any information that the RRT considers would be a reason or part of the reason for affirming the decision under review. This obligation does not apply to the categories of information referred to in s 424A(3).

[93] Section 426(3) of the Act provides that if the RRT is notified by an applicant that he or she wants the RRT to obtain oral evidence from a person, the RRT must have regard to the applicant's wishes but is not required to obtain evidence, orally, or otherwise from that person.

[94] Here, the question is whether each of those sections constitutes a code which thereby excluded any obligation of the RRT to notify the applicant that it proposed to reject Mr Chohaili's evidence after first having given the applicant the opposite impression. In my opinion, these sections do not, in clear terms, deal with the residual common law obligations of procedural fairness which must be assumed to apply; see the discussion of s 424A

by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489.

[95] I do not consider that the RRT's impressions about the credibility of a witness's evidence is "information" which falls within s 424A; see NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [8] per Branson J.

[96] Moreover, I do not consider that s 426(3) had any bearing upon the RRT's obligations in the circumstances which arose in this case. This is because the question was not whether the RRT should have had regard to the applicant's wishes. The RRT had in effect called Mr Chohaili in his written testimony. The question which arose was whether, in the light of what the RRT had said to the applicant about the favourable nature of Mr Chohaili's evidence, it came under an obligation to notify the applicant that it proposed to reject Mr Chohaili's evidence in order to achieve procedural fairness.

[97] Accordingly, it seems to me that the common law rules of procedural fairness applied to the circumstances of this case. The RRT could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding.

[98] In my view, the applicant had a "legitimate expectation" that the evidence would be accepted. This did not compel the RRT to accept the evidence but it did require the RRT to give him notice and an adequate opportunity to put a case against the rejection of Mr Chohaili's evidence; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kioa v West (1985) 159 CLR 550.

[99] It is true that there was no evidence before me as to what Mr Chohaili might have said if he was called to the witness box. As a general rule, a denial of procedural fairness will not of itself result in jurisdictional error unless it can be seen that compliance with the rules of natural justice could have made a difference to the outcome; see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.

[100] Here, the denial of procedural fairness deprived the applicant of the opportunity to make submissions about the evidence of an independent witness of fact whose evidence could, if properly considered, have resulted in a different view of the credibility of the applicant's case and therefore a different outcome before the RRT. This constituted jurisdictional error prior to the enactment of the privative clause but it is not reviewable under s 474 of the Act if the Hickman provisos are satisfied; see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [648] per von Doussa J with whom Black CJ and Beaumont J agreed.'

19 Dealing with the issue of bias, his Honour said:

`[125] The approach taken by the decision-maker at the hearing demonstrated, in my opinion, an attitude of hostility to the applicant's case which revealed that the RRT member was not open to persuasion. The matters which have led me to this view are set out in the passages at [37] to [52] above.
[126] Having stated initially that the applicant could have a few days to consider the statement, the RRT member changed course and allowed the applicant only about 10 minutes to enable the interpreter to translate it. The RRT member then, in the form of a leading question, asked the applicant whether he was satisfied that he did not need Mr Chohaili to give oral evidence.

[127] The effect of the passages of the transcript which I have set out at [37] to [41] satisfy me that the RRT member set out to persuade the applicant that it was unnecessary to call Mr Chohaili to give oral evidence. When these passages are read in the light of the hostility expressed to the applicant's case in other passages of the transcript which I have quoted, it seems to me that the inference is open that the RRT member's mind was closed from the outset.

[128] The other passages which I have quoted from the transcript reveal at [44] to [52], as was submitted by Mr Barrett, a parody of the applicant's evidence about the serious consequences which flowed from his relationship with his Muslim girlfriend as well as sarcasm and outright disbelief of the applicant's claims.

[129] I do not consider that the RRT member was actuated by malice but it is unnecessary for a finding of malice to be made.

[130] The closed mind of the RRT member is further evidenced by the findings made in the Second Decision. The findings which were made as to the implausibility of the claim that the applicant had a clandestine relationship with a Muslim woman seem to me to contain flawed and illogical reasoning.

[131] I do not see why the applicant's "negative views about Muslims", at [58] or perhaps more accurately, his fear of them, is in any way at odds with his stated intention to marry a Muslim notwithstanding the impediments to official acceptance of such a relationship. The applicant was 21 when he says he met his girlfriend. She was 16. Mr Barrett referred to "Romeo and Juliet" as a reminder of this sort of relationship. Also, Mr Chohaili did not consider it implausible.

[132] The finding that the applicant's claim of love for the girl was at odds with his failure to protect her, at [59], ignores all the objective evidence that Sabians are not in a position to protect anyone, especially a young Muslim girl, from parents who were said to be hostile to her relationship with a Sabian.

[133] Also, the finding that it was not believable that the applicant's family failed to complain to the authorities after they were physically attacked, at [60], ignores the objective evidence of discrimination against Sabians in the courts. The passage of country information which was cited in support of the finding has the opposite effect.

[134] The finding that the applicant's address as stated in his application for a protection visa was inconsistent with his claim that he was hiding at his uncle's house for three weeks before his departure, at [61], seems to me to be quite flawed. I do not see why a temporary hiding place ought to have been shown as a place of residence.

[135] The finding that the applicant's evidence should not be accepted because he said that the girl's family made false allegations only after they knew he left Iran, at [62], does not fairly state the evidence. It is true that the applicant made that statement at the hearing but he quickly corrected himself and said that this was not what he meant. He said that what he meant was that when they could not find him at his house, the girl's parents raised the complaint.

[136] I do not propose to repeat all of the findings about the "concocted relationship" made by the RRT. I have set them out in detail above at [57] to [65]. In my view, all of the findings are so strained against the applicant's case that they reveal a mind which was closed to any other outcome.

[137] I may not have been prepared to make a finding of actual bias upon the basis of the Second Decision standing on its own. However, it seems to me that when the reasons are read in light of the attitude taken at the hearing, the heavy onus which the applicant bears is made out.

[138] I have borne in mind that O'Loughlin J at [22] did not consider the RRT's findings about the applicant's relationship with his girlfriend to be illogical. However, the transcript of the oral hearing and the reasons given in the Second Decision go far beyond the matters which were before his Honour.

[139] Finally, I do not consider that the quotations from the country evidence relied upon by the RRT in the Second Decision were so selective as to indicate bias on that ground. Nevertheless, it is sufficient here for me to make a finding that the RRT member's mind was closed for the reasons given above.'

CONCLUSION ON THE APPEAL

20 The primary judge held that the RRT's decision was invalid and should be set aside on the basis of actual bias. In essence the primary judge relied upon what might be thought to be a lack of procedural fairness in the process adopted by the RRT (see below) and what the primary judge concluded were factual errors in its analysis so as to reach the conclusion that the RRT had been biased. In our view the primary judge was in error in reaching the conclusion that the RRT was affected by actual bias. The situation is analogous to that in Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 at [18]. In our view a claim of actual bias must be established by evidence. We do not deny that in a particular case an inference of actual bias could be made from evidence limited to factual errors in reasoning combined, perhaps, with an unfair process. However, the relevant errors and the lack of procedural fairness would have to be so extreme that no other reasonable inference except actual bias was reasonably open. Obviously enough that is going to be a very rare case. Plainly enough, it is not this case.

21 A conclusion of perceived bias can be made more readily than can a finding of actual bias, relying as it does, on perception rather than actuality. So, for example, the repetition of factual errors in a number of cases might be sufficient to conclude that a reasonable bystander would perceive that the trier of fact had prejudged the relevant issue: see, for example, SBBG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 281 at [31]. However, the primary judge did not deal with the question of perceived bias. Nor were any submissions put to us in relation to perceived bias. In the circumstances it is unnecessary for us to deal with that issue any further.

22 In our view the reasoning of the primary judge in finding that the decision of the RRT was affected by actual bias was in error. However, that is not the end of the matter. The question remains whether the orders made by the primary judge were nevertheless correct.

23 The RRT is required to exercise its statutory power under the Act in a way which is procedurally fair. A denial of procedural fairness may result in a decision made in excess of the jurisdiction of the RRT under the Act: Re Refugee Tribunal Ex parte Aala (2000) 204 CLR 82 at [4], [17], [39] - [41], [170] - [171]. A decision of the RRT taken in breach of the rules of natural justice is not one within the scope of the protection afforded by s 474 of the Act. It is not a decision to which s 474 of the Act applies: S157 at [38], [83].

24 The learned primary judge was of the opinion that there was a denial of procedural fairness which constituted jurisdictional error. However, he concluded that the decision was not reviewable because s 474 of the Act operated to protect that decision from review. As the authorities now establish, the finding that there was jurisdictional error based on a denial of procedural fairness precluded s 474 of the Act having any relevant operation in respect of the decision for review before his Honour. It follows that to refuse to grant the relief sought on the basis that the decision was one to which s 474 applied involved appealable error, albeit error induced by reliance upon the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs at [648].

25 The parties were agreed that the matter should not be sent back for further consideration by his Honour and that this Court should determine for itself whether his Honour erred in his conclusion that there was a denial of procedural fairness constituting jurisdictional error entitling the applicant on review to the relief sought.

26 If his Honour was correct in his view that there has been a denial of procedural fairness amounting to jurisdictional error, it is unnecessary to consider whether or not his Honour erred for the reasons advanced by the appellant on the appeal in concluding that the decision of the RRT involved actual bias on the part of the decision-maker. The applicant for review of the decision of the RRT would have been entitled to the relief sought. Where a question of jurisdictional error based on a denial of procedural fairness is concerned, the good faith of the RRT is not in issue: Re Refugee Tribunal Ex parte Aala at [4], [209].

27 The learned primary judge found that the common law rules of procedural fairness in the circumstances of this case meant that the RRT `could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding'.

28 The issue before his Honour was whether, in the events which occurred involving statements by the RRT to the applicant concerning the statement of Mr Chohaili, it misled the applicant as a consequence of which he was deprived of the opportunity to answer by evidence and argument, adverse findings the RRT was going to make with respect to the evidence of Mr Chohaili leading to its rejection.

29 It was submitted on behalf of the appellant that a fair reading of the transcript shows that the RRT correctly advised the applicant of the contents of the document, gave him an opportunity to have the document read to him by an interpreter, assured him that there was nothing in the document adverse to his interest and gave him the opportunity to say whether or not in all the circumstances he wanted Mr Chohaili called as a witness to give evidence beyond what was in the document. It was submitted that the final decision not to call Mr Chohaili to give oral evidence was that of the applicant, after he had had an opportunity to consider the document with the assistance of an interpreter. Finally, it was submitted that the RRT did wait for a number of days to allow the applicant to submit further material if he chose to do so before rendering its decision.

30 The difficulty which the appellant faces is the way the RRT dealt with the statement of Mr Chohaili when the applicant first raised the question of evidence from this witness. It lies in the following exchange:

`THE APPLICANT]: I have --- had a witness - is the witness going to be contacted?
INTERVIEWING OFFICER: I'll come to your witness in a minute. No, I haven't contacted him, but I have got a statement from him - I'll come to that in a minute."

...

INTERVIEWING OFFICER: ... when you said you wanted him for a witness I wrote to him asked him could he send a written statement first, and he responded by saying he found your case plausible. He says you're at risk of being killed, and then he gives some general information about, or general opinions about, what happens to Mandayians (sic) in Iran.

[THE APPLICANT]: (in...)

INTERVIEWING OFFICER: I didn't think there was any real point in asking him to come along and give oral testimony because he's - I think he's already said what he needs to say in writing.

[THE APPLICANT]: Yes. Thank you.'

31 It is clear from his opening question that the applicant wants the evidence of his witness before the RRT. The statement by the RRT in the context it was made, communicated to the applicant the following information:

(a) the interviewing officer had obtained a written statement from the witness;

(b) he had considered the statement;

(c) he had not spoken to the witness because it was unnecessary to do so having considered the statement;

(d) he had made a decision not to ask the witness to attend and give oral testimony because he thought that the statement was sufficient for the RRT's purposes (`I think he's already said what he needs to say in writing' (Emphasis added));

(e) he accepted the evidence of the witness as contained in the statement without the need for further elaboration; and

(f) the applicant in his own interests did not need to obtain further evidence from or elaboration by the witness beyond that which was in the document.

32 The response of the applicant demonstrates that he understood and accepted the statement. The applicant was left with an expectation that the RRT would act in the exercise of its powers conformably with the statement it had made to him.

33 If the RRT was, at the time of the exchange between it and the applicant, of the view that the statement of Mr Chohaili `exaggerated the situation for Mandaeans in Iran', and that his evidence was only given to attempt to corroborate the exaggerated and embellished evidence of the applicant himself and that the RRT intended to reject the evidence, then the RRT was obliged by the rules of procedural fairness to advise the applicant of that fact and to give him the opportunity to make submissions as to why the evidence was not exaggerated, was credible and ought not to be rejected. Further, procedural fairness required that the applicant be given the opportunity to obtain further evidence from the witness to elaborate upon the general statements which he made, and set out the circumstances which led him to hold the opinions contained in the statement, especially the statement that the events stated in the applicant's claims were `entirely plausible and factually acceptable' and `do not fall outside of the proven claims of persecution against members of the Mandaean faith'.

34 If the RRT did not at the time of the hearing have a view one way or the other as to the worth of Mr Chohaili's statement, having regard to the expectation which it had created in its statements to the applicant at the hearing, the rules of procedural fairness required that the RRT correct the misunderstanding which the applicant had as to the RRT's acceptance of the evidence, advise him it intended to reject the evidence, and give the applicant the opportunity to take the steps outlined above in his own interests.

35 The RRT failed to take either of the above steps, and left the applicant, to his detriment, with an erroneous view of the acceptance by the RRT of the witnesses' evidence and the sufficiency of it for the applicant's purposes, and a mistaken expectation that the RRT would act in accordance with its statement to him.

36 In Re Refugee Tribunal Ex parte Aala, McHugh J said:

`[101] One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1984] AC 808 at 820 - 821).'
This was the obligation which the RRT was required to discharge in the conduct of its enquiry and determination of the applicant's claims to be a refugee and entitled to a protection visa.

37 There is no universal proposition that before the RRT ever makes a finding adverse to the applicant it is necessary for the RRT to put to the applicant the concerns which are inclining the RRT towards making an adverse finding; the procedure is inquisitorial and not adversarial: Re Refugee Tribunal Ex parte Aala at [76], [172]. The risk of an adverse finding may inhere in the issues to be decided. However, the practical content of procedural fairness in the present case was determined by the conduct of the RRT which led the applicant to an erroneous view as to how the evidence of Mr Chohaili would be used by the RRT, and what further steps he needed to take in respect of the witnesses' evidence acting in his own self interest in the presentation of his case before the RRT: Refugee Tribunal ex parte Aala at [77], [128], [172], [205] - [209].

38 In order to obtain relief it is sufficient that the denial of natural justice deprived the applicant of the possibility of a successful outcome of his claim: Re Refugee Tribunal Ex parte Aala at [4], [17], [80] - [81], [104], [131], [211]. We agree with the view of the learned primary judge that the applicant was deprived of an opportunity to put his claim in a way which might have led to a different view being taken of his credibility, and therefore to a different outcome of his case before the RRT.

39 Our conclusion on the appeal is sufficient to sustain the orders of the learned primary judge made on 19 December 2002.

40 In the event, the appeal will be dismissed with costs to follow the event.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Cooper and Selway




Associate:

Dated: 16 December 2003

Counsel for the Applicant:
S Maharaj






Solicitor for the Applicant:
Sparke Helmore






Counsel for the Respondent:
G Barrett QC






Solicitor for the Respondent:
Refugee Advocacy Service of South Australia






Date of Hearing:
13 May 2003






Date of Judgment:
16 December 2003


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