NAEB OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 (27 February 2003)

Last Updated: 13 March 2003

FEDERAL COURT OF AUSTRALIA

NAEB OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25

MIGRATION - construction of privative clause, s 474, in Migration Act 1958 (Cth).

ADMINISTRATIVE LAW - whether apprehended bias constitutes breach of procedural fairness - whether breach of procedural fairness constitutes jurisdictional error.

PRACTICE AND PROCEDURE - whether matter ought to be heard by Full Court or remitted to primary Judge - where issues raised require consideration of evidence - where issues raised require findings about tribunal proceedings.

COSTS - whether costs ought to be appellants costs in the cause - where respondent did not resist appeal - where matter remitted to primary Judge.

STATUTES

Federal Court of Australia Act 1976 (Cth) s 28(1)(c)

Migration Act 1958 (Cth)

CASES

Allesch v Maunz (2000) 203 CLR 172 [2000] HCA 40 Cited

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Refd to

Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90 [2002] HCA 51 Cited, Applied

NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228 Refd to

NADH of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 19 Cited

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 [2001] HCA 28 Cited Applied

Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219, (2000) 204 CLR 82, [2000] HCA 57 Cited, Applied

S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2 Cited Applied

NAEB OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1004 of 2002

KIEFEL, NORTH, ALLSOP JJ

SYDNEY

27 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1004 OF 2002

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

BETWEEN:	NAEB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, NORTH, ALLSOP JJ
DATE OF ORDER:	27 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of Moore J of 5 September 2002 are set aside.

3. The matter be remitted to Moore J for further hearing and determination.

4. The appellant's costs of the appeal be his costs in the cause.

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	N1004 OF 2002

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

BETWEEN:	NAEB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	KIEFEL, NORTH, ALLSOP JJ
DATE:	27 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant applied for a protection visa under the Migration Act 1958 (Cth) (the "Migration Act") on 8 February 2000. The Minister's delegate refused the grant of such a visa and the appellant sought review of that decision from the Refugee Review Tribunal (the "Tribunal"). The Tribunal rejected the appellant's claims of involvement with a secret political group in Uganda and his claims of being tortured by Ugandan police because of that involvement. The Tribunal considered his accounts to be "far-fetched and implausible". The Tribunal did not accept that the scarring on the appellant's body was connected to his ill-treatment in prison because of his political affiliations, nor did it accept the condition of post-traumatic stress disorder, from which he suffered, to have been caused by his witnessing the murder of his father by the Ugandan security forces. So far as concerned the appellant's state of mind and his ability to properly answer questions, which had been the subject of medical reports, the Tribunal said that it had been mindful of that advice in assessing his credibility. The Tribunal affirmed the decision not to grant the visa.

2 Before his Honour the primary Judge, it was contended that there was an apprehension of bias on the part of the Tribunal. Actual bias was not alleged. The case presented to his Honour was of an antipathetic, and even overbearing, attitude adopted by the Tribunal. The appellant was distressed, it was submitted, and in these circumstances the Tribunal should not have continued with the hearing. Instead a number of complex propositions were put to the appellant, which he was unable to understand. His Honour was referred to the transcript and the audio tapes of the proceedings before the Tribunal. It was said that the tapes make apparent the Tribunal's attitude. Because of his Honour's view about decisions concerning s 474 of the Migration Act, his Honour did not listen to the tapes.

3 It had then been held by a Full Court of this Court, in NAAV v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 193 ALR 449; [2002] FCAFC 228, ("NAAV") that s 474 (the "privative clause") was effective to protect from review any decision made in denial of procedural fairness. His Honour the primary Judge considered that bias, which could be said to be reasonably apprehended, fell within that category. His Honour was, in these circumstances, obliged to dismiss the application.

4 The High Court has now held that the approach to the construction and application of s 474 adopted in NAAV, and many other decisions of this Court, was wrong: S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2. Section 474 is not, that decision holds, effective to protect jurisdictional errors. S157/2002 also holds that a denial of procedural fairness may constitute jurisdictional error (at [83]).

5 It is also apparent from earlier decisions of the High Court, as his Honour the primary Judge observed, that the requirements of procedural fairness extend to cases in which apprehended bias was established. Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [5], [2001] HCA 28; Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219, (2000) 204 CLR 82, [2000] HCA 57 and Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90, [2002] HCA 51 hold that both actual bias and a reasonable apprehension of bias are aspects of procedural unfairness. One of the incidents of the duty to act fairly, in exercising a statutory right that affects rights or interests, is "the absence of the actuality or the appearance of disqualifying bias" (per Gleeson CJ, Hot Holdings at [21] citing Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367). It follows, in our view, that the appeal must be allowed.

6 This Court was invited by the respondent to determine for itself the question as to the Tribunal's approach and whether a reasonable apprehension of bias was established. This would require this Court to consider what is contained in the audio tapes and make findings about the proceedings before the Tribunal. We consider this is a task more appropriate to be undertaken by a single Judge. A similar question arose recently in NADH of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 19. The Full Court there considered it to be more appropriate to remit the matter under s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) and the Court considered that such an approach was not inconsistent with observations in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) [2000] HCA 40, that the powers of an appellate court are exercisable only when the appellant can demonstrate that the order of the primary Judge is the result of some legal error. We respectfully agree. We would add that an appeal court is obviously assisted by the determination of such a question by a primary Judge, the consideration of which is likely to involve questions of impression and degree. If an appeal is then brought in respect of that decision the appellant would be required to identify, with precision, the error in the primary Judge's reasoning or approach conformable with the nature of the question before the primary Judge.

7 With respect to the question of costs, in NADH, the Court considered that an order that the costs of the appeal be the appellant's costs in the cause would be fair. We are also of that view. Whilst the appellant has had a measure of success because of the recent decision in S157/2002, the respondent did not seek to argue against it.

8 The attention of this Court was focussed upon whether the Court should conclude the matter and it is not considered appropriate to do so. Whether this appeal and the remitter were justified will only be known when the outstanding question is determined. In these circumstances we consider that the appellant should have his costs if he is ultimately successful.

9 The appeal will be allowed, the order of the primary Judge set aside and the matter remitted to the primary Judge for further hearing and determination. The costs of the appeal will be the appellant's costs in the cause.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, North and Allsop.

Associate:

Dated: 12 March 2003

Counsel for the Appellant:	Mr M McAuley
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 February 2003
Date of Judgment:	27 February 2003