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MIGRATION - appeal by Minister against judgment setting aside decision of Refugee Review Tribunal - attack on finding in court below that Tribunal failed to exercise its powers in good faith - appeal allowed.

Minister for Immigration & Multicultural & Indigenous Affairsv NAOS of 2002

Minister for Immigration & Multicultural & Indigenous Affairsv NAOS of 2002 [2003] FCAFC 142 (27 June 2003)
Last Updated: 30 June 2003


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142


MIGRATION - appeal by Minister against judgment setting aside decision of Refugee Review Tribunal - attack on finding in court below that Tribunal failed to exercise its powers in good faith - appeal allowed.

Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 followed

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 considered

SBAU v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 70 ALD 72 considered

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v NAOS of 2002

N 1257 of 2002

JUDGES: WHITLAM, FINN and GOLDBERG JJ

DATE: 27 JUNE 2003

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 1257 of 2002




ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
NAOS of 2002

RESPONDENT


JUDGES:
WHITLAM, FINN and GOLDBERG JJ


DATE OF ORDER:
27 JUNE 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The judgment of the Federal Magistrates Court is set aside and in lieu thereof it is ordered that the proceeding in that Court be dismissed with costs.

3. The respondent is to pay the costs of 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



NEW SOUTH WALES DISTRICT REGISTRY
N 1257 of 2002




ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
NAOS of 2002

RESPONDENT




JUDGES:
WHITLAM, FINN and GOLDBERG JJ


DATE:
27 JUNE 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
Introduction

1 This is an appeal from a judgment of the Federal Magistrates Court declaring a decision of the Refugee Review Tribunal (`the Tribunal') to be invalid and of no effect. The decision of the Tribunal, which was handed down on 31 May 2002, affirmed the decision of a delegate of the appellant (`the Minister') refusing to grant a protection visa to the respondent. The magistrate held that the Tribunal failed to exercise its power in good faith and that, therefore, the respondent's application for review of the delegate's decision by the Tribunal remained `on foot'.

Background

2 The respondent is an Ukrainian national. He arrived in Australia on 23 August 2000 as the holder of an Olympic Travel Authority valid for a stay until 1 November 2000. The respondent lodged an application for a protection visa on 26 October 2000, in which he claimed to fear persecution if he went back to Ukraine `due to my political believes'. The respondent claimed to have been employed since January 1999 as a coach-masseur of the Ukrainian Olympic gymnastics team on condition that he provided information to the Ukrainian Security Service (`SBU') about team members, including whether they planned to remain abroad. The respondent claimed to have left the team quarters at the Olympic Village in Sydney after he failed to provide such information to one Igor Korobchinski, a team official whom he knew to be a senior officer of the SBU.

3 The respondent's protection visa application was prepared with the assistance of a migration agent, who attended an interview between the respondent and the Minister's delegate. On 8 November 2000 the delegate refused to grant a protection visa, finding (inter alia) that the appellant was not working as an informer for the SBU.

4 The respondent applied for review of the delegate's decision on 5 December 2000. In a covering letter, his migration agent complained about the delegate's treatment of the respondent. The Tribunal held a hearing on 15 May 2002, which the agent did not attend.

The Decision of the Tribunal

5 The Tribunal's reasons for decision comprise twenty-eight pages. After setting out the background to its review and the usual boiler-plate relating to the legislation and the definition of `refugee', the Tribunal referred (at pp 4-14) to the claims made by the respondent in his visa application, in the interview with the delegate and in the Tribunal hearing. It then referred (at p 15) to the contents of a letter to the respondent dated 20 October 2000 from his wife, an English translation of which was received by the Tribunal on 29 May 2002.

6 Next, the Tribunal dealt with the so-called `country information'. It set out (at pp 15-18) extracts from a report on human rights in Ukraine prepared on 4 March 2002 by the United States Department of State which, it said, provided `details of the current Government regime and the Constitution.' The Tribunal also referred under this heading to information on religious persecution in Ukraine provided to the Department of Foreign Affairs and Trade by the Ukrainian branch of the international human rights group `Helsinki - 90', which, it said, disclosed that `the SBU does not engage in forcible recruitment of officers'. Finally, it set out excerpts from a paper on organized crime prepared by a research centre in Ukraine, which, it said, `details the entrenchment of criminal groups and corruption in Government agencies'.

7 The Tribunal then said (at p 21):

`The Tribunal makes the following findings on the material questions of fact in this application:
1. The applicant is a Ukraine citizen who legally departed the Ukraine on 21 August 2000 and arrived in Australia on 23 August 2000, as the holder of a valid Ukrainian passport issued in Kiev (on 10 June 1999), as a member of the Ukrainian Olympic team.

2. The applicant was requested to perform informant duties by the SBU prior to his departure from the Ukraine, concurrently with his duties as a coach and masseur for the male gymnasts in the Ukraine Olympic team.

3. The applicant holds no political opinion, other than his non acceptance of any political party in the Ukraine. The applicant was not imputed with an anti Government political opinion prior to his departure from the Ukraine.

4. The applicant's refusal to provide details to the SBU regarding the members of the Ukraine Olympic squad and his failure to return to the Ukraine, would not give rise to the applicant being imputed with an anti Government political opinion.

5. The applicant's claims do not give rise to well founded fear of persecution on the basis of the applicant's imputed political opinion, or within the terms of any Convention ground.'

8 The Tribunal set out (at pp 21-29) its reasons for these findings. It began by referring to authorities on the meaning of persecution for political opinion, after which it turned to the evidence. The following part of these reasons should be reproduced:

`Persecution in Australia
The Tribunal accepts the applicant's claims that on 14 September 2000 he had a conversation with Korobchinski after the Doctor for the female gymnast team told Korobchinski that the applicant had divulged secret information and would not act as an informer. The Tribunal accepts that Korobchinski was angry and told the applicant that he would be in trouble upon return to the Ukraine.

The Tribunal also accepts that applicant's evidence that he continued with his duties and that the squad were very successful, winning silver medals, which he said was partially attributable to his expertise. The Tribunal finds that the applicant was not subjected to any serious harm, or persecution within the meaning of section 91 R of the Act by virtue of this conversation. Additionally the applicant was not imputed with any anti Government political opinion.

With respect to the heated conversation with Korobchinski on 24 September 2000, the Tribunal accepts that at this time, the applicant told Korobchinski in no uncertain terms that upon return to the Ukraine he would not continue his position subject to the condition of being an informant for the SBU. It also accepts that Korobchinski had been drinking and was angry with the applicant and said that he should have said so prior to signing the 14 January 1999 document and accepting the position and travelling to Australia with the team. Additionally, that he made threats to the applicant that both he and the applicant would be in trouble on return to the Ukraine.

The Tribunal also accepts that the applicant's room was searched. However the Tribunal does not accept the applicant's belief that the object of the exercise was to gain his passport so that it could be used against him, or to prevent this travel. The Tribunal finds that this is mere speculation and that the room may have been searched given the knowledge that the applicant kept medical supplies. Whilst the Tribunal accepts the applicant's evidence that he did not purchase illegal drugs, the applicant said that his medical bag was searched. The Tribunal finds that the essential and significant reason for the search was not based on a Convention ground, but was as a random non Convention based act.

The Tribunal does not accept that the threats made by Korobchinski after drinking, amount to serious harm and therefore finds that they did not constitute persecution within section 91 R of the Act. Moreover, the Tribunal does not accept that this conversation gave rise to the applicant being imputed with an anti Government political opinion. The applicant said that despite this conversation nothing else happened to him. Whilst someone searched his room, no action was taken against him. He was not confronted and required to provide his passport, despite his evidence that almost all of the team members' passports were held.

Whilst the Tribunal accepts the applicant's claims that the Doctor was beaten, which he suspected was by a team member, because he was an informer, the Tribunal notes that there was no retaliatory action taken to protect the SBU operations, to the applicant's knowledge, after this event. The Tribunal finds that this lack of concern is indicative of the overall lack of importance, or concern taken by the SBU, or Korobchinski of the informant duties in Australia. The Tribunal finds that this discloses that there was no imputation of any adverse political opinion, by any one opposing the activities.

The Tribunal finds that if the SBU and or, then Ukrainian authorities were seriously concerned, or interested in the applicant and he was imputed with an anti Government political opinion, then immediate action would have been taken against him, particularly given that the competition had ended and his services were no longer required.

The applicant's failure to return to the Ukraine.

With respect to the applicant's failure to return to the Ukraine, the Tribunal accepts the applicant's claims that his wife and mother have been contacted and threats made as a means of trying to gain his address and return to the Ukraine. The Tribunal finds that this is consistent with the Government's desire not to lose talented sports people to foreign countries. The applicant gave evidence as to his particular expertise and success with his athletes and that since the team returned to the Ukraine in 2000, there have been three different people occupying his position and they have been successively dismissed due to the team's poor performance. The Tribunal finds that it is understandable that the Government would make efforts for the applicant's return to resume his duties.

The Tribunal notes the letter received from the applicant's wife dated 22 October 2000, in which claims are made regarding contact with Korobchinski and his threats and attempt to gain details as to the applicant's whereabouts and secure his return to the Ukraine. The letter also refers to alleged threats made to the applicant's mother and that a criminal case has been started against the applicant.

The Tribunal finds that this letter is consistent with the applicant's claims that Korobchinski was anxious for the applicant to return to the Ukraine and tried to gain details and assistance from the applicant's wife and mother. The Tribunal does not accept however that this letter gives rise to any well founded fear of persecution upon return to the Ukraine. The Tribunal notes that despite the wife's claim of being screamed at and references made to the safety of her daughter, she went home and nothing else happened, apart from receiving a further telephone call a week later, presumably in October 2000, some eighteen months ago.

The Tribunal does not accept the claim in the letter by the applicant's wife, that the applicant's mother told the applicant's wife, that "they" told the applicant's mother that a criminal case had been started against the applicant. The Tribunal finds that this tenuous claim is fabricated. The Tribunal finds that even if the claim was made, that it was merely a further attempt to try and gain the applicant's return to the Ukraine.

The Tribunal's findings with respect to the letter are further supported by the applicant's evidence at hearing, where he said that in the last contact with his family in October 2001, the caller stated that the applicant could have his old job back with the same salary. The applicant's wife has moved and now wants a divorce, which the applicant says is due to his problem. Similarly his mother has been threatened, but stood her ground and refused to tell them anything.

The Tribunal accepts the applicant's claims regarding the calls made to his wife and mother, but does not accept that they are indicative of a real chance of persecution on return to he Ukraine. The Tribunal finds that as indicated in his last contact with the family in October 2001, a year after the letter dated 22 October 2000, the applicant's wife and mother have not been harmed in any way and rather than the applicant being demoted, or dismissed, he has been offered his position back, with the same salary, after his long absence.

The Tribunal also notes that despite the telephone calls to his family, the applicant gave no details of any physical contact, or any form of adverse reprisals being taken against his family. This is further evidenced by the fact that the applicant's wife attended his place of employment to collect his personal items, which was refused, however no action was taken against her. The Tribunal finds that this does not support the applicant's claims that he has been imputed with an adverse political opinion and that he faces a real chance of persecution upon his return to the Ukraine. Whilst the Tribunal acknowledges the distress caused by the breakdown of the applicant's marriage, it notes that the applicant left his family in the Ukraine in August 2000, which is almost two years ago and therefore finds that this is understandable, given the strain of a long period of separation.

The applicant also said that despite Korobchinski stating that he would be in trouble upon return to the Ukraine because of the applicant's lack of co-operation, given that he was under his command, he is unaware of any action taken against Korobchinski upon return. Rather, the applicant said that upon return Korobchinski was rewarded and made the President of the Sporting Federation.

Whilst the Tribunal acknowledges the applicant's evidence that Korobchinski was an ex Olympic champion and skilled manager, it finds that if the SBU, or Government were serious about the position of informant duties and the total control of the staff, such as the applicant then he would not have been rewarded so readily.


The Tribunal finds that the Government is eager for the applicant to return to the Ukraine because of his skills and the desire to prevent the loss of talented sports people and coaches to overseas countries.

The Tribunal therefore finds that the authorities have contacted the applicant's family in an effort to encourage his return to the Ukraine so that he can resume his duties as coach/masseur with the Ukrainian male Gymnast team.

The Tribunal also notes that the country information, as set out above whilst supportive of the applicant's concerns of corruption and reports of politically based killings, finds that this relates to high profile political activists. The applicant possesses no such profile and would not be imputed as such, as a coach who failed to return from the Australian Olympics.

The Tribunal does not accept that in the circumstance of the applicant's case and in view of his scarce skills, the Government would impute such a political opinion upon him and that there is a real chance of persecution upon his return to the Ukraine by virtue of this opinion, given his refusal to undertake duties with the SBU.

The Tribunal also finds that the US Department of State Reports for 2001, as set out above in fact disclose no reports of politically motivated killings or disappearances. Also the Monitoring report details the Government's approach towards crime reduction, conviction and concomitantly, the reduction in corruption.

The Tribunal finds that whilst the applicant may experience some rebuke upon his return, because of his abandonment of his position and the adverse consequences to the team and low morale this may engender, the Tribunal does not accept that the applicant faces a well founded fear of persecution upon return to the Ukraine, or in the reasonably foreseeable future because of an imputed anti Government political opinion, or for any Convention ground.' (Emphasis supplied.)

The Decision in the Court Below

9 The respondent relied on the following grounds in the application heard in the Federal Magistrates Court:

`1. The decision-maker was not acting in good faith during the Department's interview and the Tribunal hearing. (The full report will be provided later on.)
2. The Tribunal failed to give weight to important issues, such as:

- the fact that I was subjected to Convention-related persecution;

- the fact that I have a well-founded fear of persecution for a Convention-related reason;

- the exeptional [sic] circumstances surrounding my decision to stay in Australia and to apply for a protection visa*

- *the full, detailed statement will be provided shortly;

3. I was subjected to unprecedented pressure by the officer of the Department of Immigration. The detailed statement will be submitted shortly.'

In an accompanying affidavit, the respondent said that the delegate of the Minister threatened and humiliated him.

10 The respondent acted in person in the court below (as he has before us). Accordingly the magistrate said (at [4]) that `the court should itself look carefully into the matter'. He went on to say (at [17]):

`It is the applicant's case that the various findings of the Tribunal are so inconsistent and illogical that they indicate a failure by the decision maker to make her decision in good faith. The applicant would argue that it is inconceivable that a decision maker who had found the existence, in a modern democratic republic, of Soviet style internal security systems including the requirement of persons on foreign trips to inform on others to prevent their defection, could at the same time find that a person who has fallen foul of the security forces in the manner accepted of the applicant, would not have a well founded fear of persecution for the Convention reason of imputed political opinion (opposition to the Government) if he was forced to return home.'
After reminding himself that he should not undertake over zealous judicial review of the Tribunal's reasons and that it was not the role of a court to reconsider the merits of an administrative decision, the magistrate said (at [20]):

`It is necessary to examine the Tribunal's reasons for decision in order to see whether the disregard of the evidence is so "blatant" that an inference can be drawn that the decision maker had not honestly attempted to exercise the relevant statutory power (per Sackville J Wu v Minister for Immigration & Multicultural Affairs [2002] FCA 1242 at [59]).'
11 The magistrate then proceeded to criticize the reasons of the Tribunal highlighted in the passage reproduced at [8] above. He described them as `findings'. It seemed to him that there was `too much speculation in the Tribunal's reasons' [30]. Specifically, the magistrate said it was `difficult to see' why the conclusion about the Korobchinski conversation followed from the respondent's continuation of his duties [22]; he found `hard to accept' that an official search for drugs would be conducted in the absence of the respondent [23]; the fact that the respondent retained custody of his own passport had to be viewed in the light of a warning to him by another officer of the SBU that he should `stay in Australia if he did not want to disappear somewhere in the Ukraine' [25]; the fact that no retaliatory action was taken to the respondent's knowledge was `not proof that it was not' [26]; he could not find `any evidence to support' the statement that, if the authorities were interested in the respondent, immediate action would have been taken against him [27]; the findings about the authorities' efforts to encourage the respondent to return home so that he could resume his duties were `perplexing in the context of' the contents of his wife's letter [28] and `an odd way to go about persuading a defector to return' [30]; and, finally, the finding that the respondent was not in the position of high profile political activists meant he `might more readily be associated with' an individual named in the State Department report, `a resident of the Cherkasy region who was detained in 1999 on suspicion of theft' and `later died from injuries sustained from the beating' by police who allegedly tortured him [31].

12 Having made these criticisms, the magistrate returned to the applicable principles of law. He referred with evident approval to a statement of Driver FM in WAAK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 86 at [35]-[36] and also purported to apply what Mansfield J had said in SBAU v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 70 ALD 72 at [31]-[32]. The magistrate concluded (at [35]):

`It is my view that the consistent inability of the Tribunal in this case to identify any evidence upon which its findings were based and its apparently capricious use of assumptions, which appear on the face of the document to be contrary to the accepted evidence, manifests a failure by the Tribunal to exercise its powers in good faith.'
Contentions on the Appeal

13 Counsel for the Minister submitted that the magistrate erred in his approach to the question whether the decision of the Tribunal met the first of the conditions stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. In particular, he said that the reference to Wu by the magistrate in his reasons reproduced in [10] above incompletely paraphrased how Sackville J summarized the approach taken in NAAV v Minster for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 to the first of the Hickman conditions. The full terms of what Sackville J said in Wu (at [59]) were:

`The touchstone that emerges from the judgment in NAAV is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so "blatant" (to use von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Daihatsu v FCT, at 590.'
14 It was submitted that the magistrate overlooked the serious nature of an allegation that a decision-making body has not made a bona fide attempt to exercise its statutory power. Further, having regard to the gravity of the allegation, he failed to apply the standard of proof required by s 140(2) of the Evidence Act 1995 (Cth).

15 Counsel addressed each of the specific matters in the Tribunal's reasons about which the magistrate was critical. It is not necessary to repeat his review of the relevant evidence and material before the Tribunal. Counsel did point out that: determining what is likely to happen in the future in Ukraine may require findings as to what happened in Australia; the magistrate overlooked the respondent's evidence that his medical bag was searched; the way in which the SBU reacted to events in Australia and Korobchinski's fate upon return were obviously important considerations; and the fate of persons detained in completely unrelated circumstances in Ukraine was just not relevant. Counsel submitted that the magistrate simply took a different view of the evidence to that taken by the Tribunal. In this way the magistrate impermissibly turned his dissatisfaction with the Tribunal's reasons for its factual findings into a finding of want of bona fides on the Tribunal's part.

16 Finally, counsel said that Driver FM's statement in WAAK to the effect that s 420(2)(b) of the Migration Act 1958 (`the Act') established an `overarching principle' a breach of which would vitiate a decision notwithstanding s 474 of the Act was incorrect. The magistrate's adoption of that view contributed to his flawed approach.

17 The respondent was, not unnaturally, satisfied with his success at first instance. It may be safely assumed that, as a layman, he was unfamiliar with the legal principles in this area of discourse. With the assistance of an interpreter, he emphasized that the Tribunal had not disbelieved his direct evidence and repeated some of the magistrate's observations. The respondent was puzzled by the reference to religious persecution in the `Helsinki-90' information, upon which the Tribunal relied for its comment in the country information that the SBU did not forcibly recruit officers.

Conclusion on the Appeal

18 An analysis by Mansfield J in SBAU of the principles applicable to a determination whether a decision constitutes a bona fide attempt to exercise a statutory power of review was subsequently approved by a Full Court (Tamberlin, Mansfield and Jacobson JJ) in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. They summarized (at 756) the propositions which emerge from Mansfield J's analysis as follows:

`43. First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 at [49] per Heerey J and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 at [25] per Hely J.
44. The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [35] per Mansfield J and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

45. Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Beaumont J.

46. Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].

47. Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].

48. Ninth, it is not necessary to demonstrate that the decision-maker knew

the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 (`SCAZ').'

19 That summary by the Full Court in SBBS was considered in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, where Heerey and Kiefel JJ said:

`7. ... We adopt what their Honours said at [43]-[47], but with this qualification to the ninth proposition at [48].
8. As with other areas of law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty.

9. Questions of professional ethics arise. An allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19], cf Federal Court Rules O 11 r 1B.

10. Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71] - [72]. Apprehended bias, resting as it does on what may be observed objectively, as distinct from the actual state of mind of the decision-maker, is quite different. While it has been suggested that actual bias may occur subconsciously, that would not establish bad faith in the relevant sense for the purposes of s 474(1): NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [4], [113]-[115], [638] and [648].

11. In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s 425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.'

20 In SBAN the Full Court reversed the decision of the trial judge who had found that the Tribunal was actually biased and had concluded that the Tribunal did not exercise its power in good faith. Heerey and Kiefel JJ explained why they allowed the appeal this way:

'31. His Honour's conclusion seems not to have been based on the RRT's decision not to delay a decision until signatures to the two statements had been obtained. (As already noted, it is doubtful whether the respondent's solicitors even asked for this.) Rather, his Honour's view was that the RRT had reached a conclusion which was incapable of alteration, even by evidence which, if genuine, was very cogent in the respondent's favour.
32. But the RRT did in fact take the two statements into account. It summarised them in its reasons. It did not ignore them. It did not reject them on the ground that they were unsigned. The RRT was not bound by technicalities, legal forms or rules of evidence: s 420(2)(a). Even so, failure to accept any particular piece of evidence is not an error of law and would not found judicial review, even under the Act as it stood prior to the introduction of s 474. In essence, the RRT reasoned that the fact that a police officer's gun had disappeared when the respondent became involved in a scuffle with police in the course of their enforcing a law of general application could not rationally give rise to a belief that the respondent was assisting an opposition movement, either by providing the gun to them or otherwise. As a matter of law, that was a conclusion the RRT was entitled to come to on the facts, notwithstanding the evidence of AB and the respondent's mother. Even if irrational or against seemingly strong evidence or unsupported by adequate reasoning, such a conclusion was within the RRT's power, as the law now stands. Nor is it an indication of actual bias that the RRT thought that the provision of signatures to statements of witnesses which it had rejected was unlikely to change its views and at the same time was likely to prolong proceedings indefinitely for an asylum seeker in custody.

33. The problem with his Honour's analysis is that it assumes a linear approach in which the RRT reaches an unshakeable conclusion and then rejects the two statements. But a decision-maker is not obliged to deal with material in any particular sequence. It is open to the decision-maker to accept evidence A and then, as a consequence, reject contrary evidence B. Nor is a decision-maker obliged to attach a higher level of importance to one part of a fact-finding process (such as the acceptance of a witness) than to another (such as a finding that an account is inherently unlikely). The RRT might have taken the converse approach. The member might have said that although he thought the loss of gun/imputed political opinion scenario unlikely to the point of absurdity, nevertheless he accepted the unsigned statements of the respondent's mother and AB. But rightly or wrongly the RRT put greater store on its own views as to the inherent unlikelihood of the respondent's claims than to the evidence contained in the two statements. This does not amount to actual bias or bad faith.'

21 These expositions from SBBS and SBAN require careful attention. It should be noted that the first six propositions set out in SBBS emerge from paragraphs in Mansfield J's judgment in SBAU to which the magistrate in the present case did not, in terms, refer. The seventh proposition (which does emerge from one of the paragraphs in SBAU to which the magistrate expressly referred) may be of doubtful assistance. The concept of capriciousness is encountered in the law in circumstances which are concerned with unreasonableness: see, for example, Quinion v Horne [1906] 1 Ch 596 per Farwell J at 602-603; Mills v Cannon Brewery Co Ltd [1920] 2 Ch 38 per P.O. Lawrence J at 44-45. Mason J referred to the lastmentioned case in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 where he had to consider the meaning of a clause providing that approval of a proposed lease `shall not be capriciously or arbitrarily withheld.' His Honour said (at 609):

`... "arbitrarily" connotes "unreasonably" in the sense that what was done was done "without reasonable cause". In these circumstances I doubt whether "capriciously" adds anything, except perhaps to direct attention to the motivation of the respondent.'
A motivation may be a conscious or unconscious stimulus for action. The qualification added by Heerey and Kiefel JJ in SBAN to the ninth proposition stated by the Full Court in SBBS is important, and we agree with it. Indeed, it should be extended to the seventh proposition so as to make it clear that want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment.

22 In the present case the magistrate's reference to the `apparently capricious use of assumptions' does not seem to involve an implicit finding of recklessness. However, the magistrate has not adverted to many of the primary propositions identified in Mansfield J's judgment in SBAU. Had he done so, it must be unlikely that he would have embarked on his critical trawl through the Tribunal's reasons. We regret to say that he has plainly ignored his own instruction not to be overly zealous in his scrutiny of those reasons. Moreover, as Heerey and Kiefel JJ point out in SBAN, the fact-finding process does not require the Tribunal to put greater store on one particular kind of evidence than its own view based on experience and other material. The findings made by the Tribunal in the present case were plainly open to it. Neither this Court nor the magistrate needs to agree with the Tribunal's reasons. The criticisms made by the magistrate mainly turn on his evaluation of the evidence and other material before the Tribunal but, in any event, such criticisms would not, in our opinion, warrant an inference being drawn of want of good faith on the part of the Tribunal.

23 One particular example illustrates the way in which the magistrate has unconsciously overstepped the bounds of judicial review and involved himself in the merits of the respondent's case. The magistrate singled out at the end of his litany of criticism the Tribunal's finding that the respondent would not have a political opinion imputed to him resulting in a real chance of persecution upon his return to Ukraine because he was not a high profile political activist. To impugn that finding, the magistrate plucked out of a section of the State Department report dealing with arbitrary or unlawful deprivation of life the case of a resident of Cherkasy detained by police on suspicion of theft. This case was not referred to by the Tribunal, but the Tribunal did set out in its statement of reasons for decision (at pp 16-17) extracts from that same section of the report relating to politically motivated killings. The material referred to by the Tribunal would seem more relevant since no claim was made by the respondent that he would be detained on suspicion that he was a common thief. Moreover, the respondent lived in Kiev, not Cherkasy which is located hundreds of kilometres further downstream towards the Black Sea. The magistrate's own view involves matters of conjecture that may or may not be far-fetched, but speculation of that kind provides no useful guidance in detecting a want of bona fides on the part of the decision-maker. The magistrate has plainly erred in his approach, and his finding on the question of good faith cannot be sustained.

24 The decision of Driver FM in WAAK was overturned by the Full Court in SBAN without the need to consider what he had to say about s 420(2)(b) of the Act. However, Driver FM's view of the significance of that provision has subsequently not been accepted by the Full Court (French, Hill and Marshall JJ) in WADK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 48. To the extent that the magistrate in the present case was swayed by such a view, that heresy may also have contributed to his failure to defer to the Tribunal's fact-finding function.

25 The appeal will be allowed with costs. The orders of the court below will be set aside and in lieu thereof it will be ordered that the proceeding in that court be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 27 June 2003

Counsel for the appellant:
J D Smith






Solicitors for the appellant:
Sparke Helmore






The respondent appeared in person



Date of hearing:
19 May 2003






Date of judgment:
27 June 2003


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