NACL v Refugee Review Tribunal [2002] FCA 643

FEDERAL COURT OF AUSTRALIA

NACL v Refugee Review Tribunal [2002] FCA 643

IMMIGRATION – application by Palestinian Muslim against decision of Refugee Review Tribunal refusing protection visa – applicant claimed entitlement to visa on grounds of fear of persecution in native Syria on account of association with various Palestinian Muslim political organisations – applicant claimed Tribunal decision reviewable because affected by actual bias and in breach of requirements of s 424A of Migration Act 1958 (Cth) – whether decision of Tribunal is vitiated on either basis – whether decision reviewable under privative clause – whether Tribunal correctly named as party to the proceedings.

Migration Act 1958 (Cth) ss 424A, 474, 476(1)(f), 479 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Schedule 1, Clause 8(2)

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 applied Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 referred to Briglia v Federal Commissioner of Taxation (2000) ATC 4247 referred to Kordan Pty Ltd v Federal Commissioner of Taxation (2000) ATC 4812 referred to Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4268 referred to Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 referred to Thairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 applied Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631 applied NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 approved Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346 approved Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 approved NAAA v Minister for Immigration and Multicultural Affairs [2002] FCA 362 followed NACL v REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 123 OF 2002

CONTI J 3 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 123 OF 2002

BETWEEN: NACL

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENTS

JUDGE: CONTI J

DATE OF ORDER: 3 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The Applicant pay the Respondents' costs of the proceedings. 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 123 OF 2002

BETWEEN: NACL

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENTS

JUDGE: CONTI J

DATE: 3 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT Background 1 The present application is for review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 23 January 2002, whereby the earlier decision of the Minister's delegate made on 16 May 2001 to refuse to grant the Applicant a Protection (Class XA) Visa was affirmed. By virtue of the application for review having been filed on 20 February 2002, it is clear that the application falls to be determined under the newly enacted Part 8 of the Migration Act 1958 (Cth) ("the Act"), the feature of which are the privative clause provisions of ss 474 and 476 thereof. The decision of the Tribunal extended over 34 pages, and contained a comprehensive digest of country information concerning Syria, Palestine and the Middle East generally bearing upon the detail of the claims advanced by the Applicant to refugee status within the Refugee's Convention, as amended by the Refugee's Protocol. My summary of the facts and circumstances found by the Tribunal will first be set out below. 2 The application filed by the Applicant in the Court on 20 February 2002 was for prerogative relief purportedly made under s 39B of the Judiciary Act 1903 (Cth) referrable to the decision of the Tribunal. It suffices to reproduce paragraphs 5 and 6 thereof, which read as follows: "5. The applicant is a citizen of Syria. If he is deported to Syria he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. 6. The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent: a. Exceeded jurisdiction in making the decision to affirm the second respondent's decision not to grant the applicant a protection visa; and b. Erred in law in arriving at the decision to affirm the second respondent's decision not to grant the applicant a protection visa." 3 The Applicant has spent most of his life in Syria, having been born in Damascus in the Ali Amouk camp on 23 February 1966. He is a Palestinian Muslim Sunni, and at least most of his family, including his mother, still reside in Syria. He is now stateless, having arrived in Australia on 11 September 2000 as a refugee seeking asylum. He is presently in detention at Villawood. 4 In her reasons for decision, the presiding member of the Tribunal set out in detail the factual circumstances which were claimed by the Applicant to have lead to his fear of persecution. These factors are documented from pp 4-14 of the Tribunal decision below under the heading "Claims and Evidence", and may be broadly outlined as follows: (a) the Applicant is a Palestinian Muslim, originally (as stated above) from Syria, who claims that he is now a stateless Palestinian; (b) his problems in his homeland began in 1986 when he commenced to serve in the "PLA", a division of the Syrian Army in which all civilians were Palestinian; prior to that time, he had been a taxi driver, auto electrician and painter, and had lived with his family in Syria; (c) he was also a member of the youth section of the Fatah (a Palestinian political faction headed by Yasir Arafat). This branch of the Palestinian Liberation Organisation ("PLO") was said to be responsible for organising national celebrations, and the Applicant claimed he had no involvement in the military section of that organisation; (d) whilst serving in the Syrian Army, he was forcibly removed from the training centre where he was stationed by some unknown civilian men, and transported to a location in Damascus, where he was asked about his association with the Fatah arm of the PLO movement; (e) that he was there detained for approximately one month and interrogated repeatedly, during which interrogation he was intimidated physically and psychologically; (f) after 36 days of interrogation and torture, he was then detained with other Arafat supporters until 1989, when he was released on the condition that he report to Damascus Intelligence at regular intervals during each week; he thereafter resumed or took up residence with his parents; (g) after consultation with PLO representatives in Jordan, he was given permission to leave Syria, upon the basis of a supposed pilgrimage to Mecca, though in fact he departed with a tourist group to travel to Moscow, where he hoped to study at Moscow University with the assistance of an Eastern bloc scholarship. At this point in time, the Applicant became anxious that if the Syrian authorities found out about his travel plans, they would attempt to prevent him leaving the country and going to Moscow. That was said to be because having been imprisoned for suspected political activity, it would be thought by the Syrian authorities that he was intending to continue with PLO activities outside of Syria; (h) he travelled to Moscow and studied at Moscow University from 1991 to 1996, during which time he joined the Palestinian Student Union ("PSU"), a youth organisation aligned with the PLO, and was in charge of a branch of that Union in Moscow. As a result of the close association of the PSU with the PLO, the Applicant received financial support from the PLO, as well as from his parents and the PLO office in Moscow. He received a Bachelor's degree in international law from the Moscow University; (i) on his return from Moscow, the Applicant was detained by the Syrian government from 1996 to 1999, after confessing to his participation in the PLO while in Moscow. He was told that reports had been received of his involvement in peace negotiations within the PSU for an agreement between the Palestinians and Israelis. In the course of being interrogated however, he denied involvement in the activist "Rakah" wing of the PLO, albeit that he had known of and associated with Rakah members whilst he was a member of the PSU branch of the PLO in Moscow. The Applicant claimed to have feared the reaction of the Syrian authorities to persons with an association with the Rakah movement; (j) on his release from detention in Syria in 1999, he was forced to sign a declaration to the effect that he would not leave Syria; his detention prevented him from gaining employment in the Syrian Civil Service; since he could not work in his preferred capacity, he decided to leave the country; and (k) in June 2000 the Applicant escaped Syria with the assistance of a so-called "people smuggler"; and on 11 September 2001 the Applicant arrived in Australia. The Applicant claimed that he would be imprisoned and tortured if he returned to Syria, because he had been banned from leaving the country, and had hence left Syria illegally. 5 Because of the way that the Applicant's claim was framed before me (that is, insofar actual bias has been alleged on the part of the Tribunal), it is next appropriate to recount the events leading up to the Tribunal's decision on 23 January 2002: (a) On 17 September 2000, the Applicant was interviewed by an officer of the Minister's department. Subsequently, on 8 March 2001, the Applicant lodged an application for a protection visa with the Minister's department, which as stated above was refused by a delegate of the Minister on 16 May 2001. (b) On 21 May 2001, the Applicant lodged an application for review with the Tribunal, and thereafter on 6 July 2001, the Applicant was invited to attend a hearing by the Tribunal, to be heard on 27 July 2001. On 17 July 2001, the Applicant accepted the invitation to attend the hearing. (c) On 24 July 2001, the Applicant sought an adjournment of the review hearing set down for 27 July 2001, citing personal psychological problems as the reason, which request was acceded to by the Tribunal. (d) As a result of the concern over the psychological state of the Applicant referred to in (c) above, the Tribunal commenced on 27 July 2001 to put in train a procedure whereby the Applicant could be psychologically assessed. As part of that procedure, the Tribunal obtained on 22 October 2001 a report from Dr Pulella, a consultant forensic psychiatrist. This report was compiled by Dr Pulella subsequent to an interview he conducted with the Applicant on 18 September 2001. At that time the Applicant was detained at Hakea Prison Complex in Western Australia. This report concluded that the Applicant suffered from depressive moods consistent with his life circumstances and present living situation in detention, but that he presented no evidence of actual psychiatric disorder. It further recorded the belief of Dr Pulella that the Applicant was fit to attend a Tribunal hearing, provided an Arabic interpreter was present. (e) As a result of this positive feedback regarding the Applicant's condition, as evidenced by Dr Pulella's report, the Applicant was invited on 27 November 2001 to attend a hearing of the Tribunal on 7 December 2001, an invitation which was accepted two days later. (f) Earlier on 30 July 2001, the Applicant had informed the Tribunal that an ABC televised programme had shown him engaged in a Port Headland demonstration, which programme had been picked up by the Al Jaseera TV station, which was well known in the Arab world; he asserted to the Tribunal that the secret service of Syria consequentially knew of his whereabouts; a further letter from the Applicant to the Tribunal on 18 September 2001 stated that his brother and cousin had been arrested by the Syrian intelligence and their house had been searched, and all of the Applicant's papers and books had been taken, including letters from Jewish friends in the "Rakah's Movement for Peace"; hence he contended that the Syrian authorities had now imputed to him the role of a supporter of Israel. (g) On 13 December 2001, the Tribunal wrote to the Applicant and informed him of certain information which it suggested might be the reason or part of the reason for affirming the decision to refuse the protection visa, and gave him an opportunity to comment upon the same. So much may be observed to have been conduct prima facie consistent with its statutory obligation under s 424A of the Act. The information was to the effect that the Australian Department of Foreign Affairs and Trade ("DFAT") had mutually agreed on a regime for the voluntary return to Syria of people in the Applicant's position, that is to say, people with an association with the PLO. The Tribunal's letter also referred to a journal article which "indicates Rakah… is the single largest party in the Arab sector of Israel" and that "[a] delegation of Rakah had been invited to visit Syria in 1997 and even progressive Jews had been approved to attend". In response to that letter, the Applicant wrote on 18 December 2001 to the Tribunal, stating that he rejected the Syrian government's motives for offering the invitation for the return of Syrians like himself, saying "the aim of such action is to deceive and despises (sic) the true intention of the government of Syria". (h) By letter of 12 January 2002, the Applicant informed the Tribunal to the effect that he would forward to the Tribunal further country information in support of his application. The Tribunal agreed to this request by letter of 16 January 2002, and additional information (being over 50 pages in length) was provided to the Tribunal by the Applicant on 21 January 2002. The Decision of the Tribunal below 6 The Tribunal found that the events which the Applicant claimed to have befallen him between 1996 and 1999, upon his return to Syria from Moscow, did not in fact occur, and that the Applicant had concocted the claim of involvement in Rakah so as to enhance his prospects of obtaining asylum, and that the Applicant did not in truth have a well-founded fear of persecution for a Convention reason, in accordance with the Refugee's Convention and Refugee's Protocol. In that context, the Tribunal cited and reviewed a large amount of country information relating to the more recent political history of Syria, and in particular of Palestinian refugees in Syria, from which the Tribunal drew the inference that the Applicant had no genuine fear of persecution upon his return to Syria. 7 The Tribunal further found that even assuming that the Applicant had been detained between 1996-1999 upon his return from Moscow to Syria, which it did not find to be plausible but rather a fabrication, the reason for any such detention would have been his illegal departure from Syria in 1996, which would be a breach of a law of general application and therefore not persecutory, such as to justify his claimed fear of persecution for a Convention reason. As to the Applicant's claim that he had been detained whilst he was allegedly offering military service to the Syrian government between 1986-1989, the Tribunal characterised this as an implausible account of events of his life spent in Syria. 8 The Tribunal accepted that the Applicant did have a level of association with Rakah whilst in Moscow (albeit a low level), but considered that he had not suffered harassment or persecution as a result, and that he did not fit the profile of a "Rakah activist". Further, it found it to be unlikely that the Applicant would have been detained in Syria for his involvement in Rakah at the very same time that Rakah representatives had been invited to Damascus. The Tribunal would not accept that the Applicant had a political profile as a Rakah activist, or indeed any direct involvement in Rakah; for instance, in response to the Tribunal's questioning, he could not provide pertinent information about Rakah, particularly the identity of its leaders. 9 The Tribunal further accepted that the Applicant had been filmed in ABC television footage after his arrest, for involvement in a riot at the Port Headland detention centre where he was being detained, and further accepted that such footage had been shown in his home country of Syria. However, it did not accept that this would lead to him being imputed with a political opinion adverse to Syrian authorities, such as to cause him to suffer persecution at their hands. Nor did it accept the claim that the Applicant's brother or cousin were missing, and that the Syrian secret police had been visiting their house. 10 Findings made by the Tribunal generally in relation to Syria, based largely on country information, included the following: (a) Palestinians living in Syria receive services and benefits equal to those enjoyed by Syrian nationals, having similar access as Syrian nationals to employment, education and health services, and to protection against violence; they may purchase property (except agricultural land); though they may not vote in national elections, they may hold membership in the Ba'ath Party, and participate in party elections. (b) Most Palestinians are well integrated into Syrian society; they are financially assisted to study abroad, and education has enabled them to obtain high positions in government ministries; they have a wide range of civil rights, including the right to travel and reside anywhere in the country, and generally have "secure civil and social rights"; they are "formally equal" to Syrians. 11 Findings made by the Tribunal referrable to his association with Fatah included the following: (a) Pro-Arafat supporters have been monitored by the Syrian authorities, and after completion of his military service, the authorities may have had the Applicant under surveillance, if he did in fact have a profile as an Arafat supporter; however being kept under surveillance would not be a hardship sufficient to amount to persecution. (b) There is not to be found any evidence that in recent years, there has been any arrest, detention, mistreatment or imprisonment of Palestinians simply because of their membership or former membership of the Al Fatah organisations; otherwise a large proportion of the Palestinian refugees living in Syria would be behind bars. (c) A decided thaw in relations between the Syrian and PLO mainstream set in at about the time of the death of Hafez al Assed in mid-2000 and of the rise to power of his son Bashit, the current Syrian President. Mr Arafat was invited to Syria, his first official visit in six years, and Syria has thrown considerable diplomatic and financial weight into supporting the Palestinian uprising in the Occupied Territories. (d) 1998 information available to the Tribunal indicated that many pro-Arafat Palestinians, who had served jail terms in Syria, continued to live in that country following their release, something which did not indicate a fear of persecution for being regarded as pro-Arafat. (e) There was no evidence that former Rakah sympathisers, either Palestinians or Syrians, have been mistreated by the authorities, or that they are unable to have, or have been denied, access to effective protection by the Syrian authorities. The Court hearing 12 At the hearing of the application for review, the Applicant's solicitor placed before the Court two affidavits. The first was made by Mr Kalle, the Applicant's solicitor sworn 2 May 2002, which deposed to efforts he had made to have the Tribunal hearing transcribed, and which also contained assertions that the Tribunal had failed to consider certain country information relevant to the Rakah organisation. Annexed to his affidavit was a written transcript of the Tribunal hearing (Annexure "A"), and also some eleven pages of country information ("Annexure B"), apparently downloaded and printed from the internet and purporting to document the political beliefs, and degree of acceptance in Syria, of members of the Rakah movement. 13 The second affidavit which the solicitor for the Applicant sought leave to file at the hearing was an affidavit of the Applicant, sworn at Villawood Detention Centre on 1 May 2002, which first deposed to the circumstance that the Applicant did not have the assistance of a migration agent at the Tribunal hearing on 7 December 2001. However, its apparently primary purpose was to outline the Applicant's knowledge of and association with the Rakah movement. It was said that at the Tribunal hearing, the Applicant had been asked to identify the leader of that movement, and being unable to answer that question, the Tribunal had inferred that the Applicant's association with Rakah was an implausible one. The Applicant's affidavit was an attempt to clarify the true state of his knowledge of, and association with, the Rakah movement. 14 Whilst I had difficulty in comprehending how any such affidavit material could be shown to establish or assist to establish any excess of jurisdiction or error of law, such as arguably to attract an entitlement to the grant of the prerogative relief sought, I accepted the tender by Mr Kalle's affidavit of the transcript of the hearing before the Tribunal, which was not in any event opposed, though not the tender of the additional country information, which was not shown to add materially to, much less contradict, the wealth of country information to which the Tribunal had already referred, and which the Tribunal had considered to have been at least of no assistance to the Applicant's case, if not inconsistent therewith. Nor did I accept the tender of the audio tape recording of the Tribunal hearing, since it was not established by the Applicant in any viable or specific way as to how it was supposed to bear upon the prerogative relief sought, whether by way of denial of natural justice or otherwise. With hesitation, I admitted, against the objection of the Minister, paragraphs [4-9] of the Applicant's affidavit, which purported to provide additional information concerning the Applicant's involvement with the Rakah organisation, notwithstanding that the same did not appear in reality to advance the Applicant's case for refugee status. It is one matter for the Applicant to establish the constructive and non-violent nature of that organisation's activity in Russia, but another matter to demonstrate that the Applicant's claim to an association with Rakah would have established, or materially assisted to establish, the status of the Applicant as a refugee. In any event, the Tribunal had not been prepared to accept that any such an association, irrespective of its true nature and extent, would have been a cause for the persecution of the Applicant upon his return to Syria. Applicant's submissions 15 In submissions both written and oral, the Applicant contended that the decision of the Tribunal below was reviewable, notwithstanding the operation of the new Part 8 of the Act since 2 October 2001, by virtue of Schedule 1, Clause 8(2) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). In written submissions, the Applicant made express reference to his understanding that pursuant to the operation of the privative clause, an administrative decision under the Act is only reviewable if it is not a bona fide attempt to exercise power, or does not relate to the subject matter of the legislation, or, is not reasonably capable of reference to the power given to that body, being principles derived from R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. After thus outlining his understanding of the scope of review available to this Court under the privative clause, the solicitor for the Applicant pressed his two primary submissions, which he described in terms of "actual bias" and "s 424A" respectively. 16 The submission as to actual bias was to the effect that the decision of the Tribunal below was affected by a jurisdictional error of law, in that the Tribunal had acted outside its jurisdiction by allowing or permitting its decision to be caused or affected by actual bias. The conduct of actual bias was said to have been constituted in part by the Tribunal's alleged failure to adequately consider the available country information relevant to the Applicant's claim. That conduct of actual bias was further said to demonstrate an absence of 'bona fide exercise of power', and was hence reviewable by prerogative relief as an instance of the first category of review delineated by the High Court in Hickman. In support of that submission, the Applicant acknowledged the tests as to the existence of actual bias enunciated in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104, where the following test was enunciated by French J at first instance as follows: "It must be a pre-existing state of mind which disables the decision maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or which are relevant to the decision to be made." I interpolate to add that at 106, his Honour also said as follows: "The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias." I should add that the views of French J were upheld by the High Court in Jia at (2001) 178 ALR 421: see for instance [82] (per Gleeson CJ and Gummow J) and [277] (per Callinan J). 17 The Applicant pointed to and placed reliance upon certain aspects of the findings of the Tribunal, from which he asserted that an inference of actual bias on the part of the Tribunal was thereby open to be drawn. The first of those aspects related to the Applicant's involvement in Rakah, the submission being that the Tribunal had initially accepted that the Applicant had been involved in the organisation, but had later drawn an inconsistent conclusion which was in reality to the contrary of that proposition. The second was the Tribunal's failure to attach any or adequate weight to the Applicant's testimony that he had been arbitrarily arrested and detained between 1996 and 1999 for his political affiliations with the Palestinian Students' Union and the Rakah in Moscow, and was closed-minded to relevant documentary evidence reflecting Syria's continued practice of arbitrarily detaining and arresting persons involved or affiliated with persons associated with political groups, including those of a non-violent disposition. The third and fourth matters of complaint of bias were that the Tribunal had adopted a closed mind to the possibility that the Applicant may be persecuted on his return to Syria for an imputed political opinion and for being Palestinian, and had also been closed-minded to the availability of country information relevant to the likelihood that the Applicant would be detained and harassed on his return to Syria on account of his political beliefs, particularly in the light of what was asserted by the Applicant as a fact that the Applicant had been previously detained arbitrarily from 1986 to 1989, whilst serving in the Syrian army. The fifth matter, contended by the Applicant very broadly, was that the Tribunal had been closed-minded to the testimony of the Applicant, and to relevant issues from the outset of the Tribunal's review hearing, and that furthermore, in the process of questioning the Applicant in a supposedly non-adversarial forum, the Tribunal had acted with partisanship and hostility, such as to indicate a state of closed mind adverse to the Applicant prior to the hearing, and had not been reasonably open to persuasion, either by the Applicant's testimony or the independently available country information. 18 The Applicant's second substantive argument in support of the proposition that the Tribunal had been affected by jurisdictional error was that the Tribunal had been derelict in the performance of its duty to supply certain information to the Applicant, being information which it intended to take into account in exercising its decision-making function, in breach of s 424A of the Act. For ease of reference, I have reproduced that section in its entirety: 424A Applicant must be given certain information (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention – by a method prescribed for the purpose of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 19 It was the contention of the Applicant that the Tribunal had obtained various journal articles, pertaining in particular to the treatment of individuals in Syria with an affiliation to the Rakah organisation, but had only provided to the Applicant for comment abridged summaries of the content of these articles, as opposed to the full text of the same. Therefore, so the argument followed, the Applicant was not afforded an opportunity to consider the context of the articles, and was thus placed at a significant disadvantage in attempting to provide meaningful and persuasive comment in furtherance of his review application before the Tribunal. A related argument advanced in similar terms in support of the Applicant's s 424A submission was that the Tribunal had been privy to certain information about the Rakah organisation which it had used as a basis for enquiry of the Applicant as to his state of knowledge about Rakah, yet had not disclosed to the Applicant the source of that information or provided the information to the Applicant for comment, other than in the course of vigorous enquiry at the hearing. The Applicant contended in that context that it was erroneous for the Tribunal to impute a lack of knowledge on the Applicant's part about Rakah, due to his lack of knowledge specifically as to the leaders of that organisation, in circumstances where it limited its questioning of the Applicant on the subject of Rakah, that is to say, as to the identity of the leaders of that political group. Though it is not entirely clear, the Applicant at one stage appeared to exemplify these alleged breaches of s 424A as further indications of actual bias. The submissions of the Minister and my conclusions 20 Counsel for the Minister provided a close examination of the policy considerations which had lead to the enactment of the new Part 8 of the Act, and also the decisions of the Courts decided both prior to and after the enactment of the new regime, which inform the circumstances in which an administrative decision is reviewable in the face of a privative clause. 21 Counsel then submitted that the evidence in the proceedings and the conduct otherwise of the Tribunal did not demonstrate that the Tribunal had failed to make a bona fide attempt to exercise its statutory powers within the meaning of that term as discussed in Hickman. With reference to the decision in Briglia v Federal Commissioner of Taxation (2000) ATC 4247, Counsel submitted to the effect that neither error of law nor unreasonableness per se demonstrates invalidity in circumstances where a privative clause is in operation, and also referred the Court to passages from Kordan Pty Ltd v Federal Commissioner of Taxation (2000) ATC 4812 at 4815 and Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4268 at 4276 respectively to the effect that the suggestion that a purported exercise of power is not bona fide is "a serious allegation and not one lightly to be made", and "necessitates proof of extreme circumstances". Counsel for the Minister further submitted that for a Tribunal decision to be reviewable in this Court, purportedly within the absence of bona fides exception, there needs to be evidence that the Tribunal has been in extreme default of its administrative function, for example by either proceeding to a determination on the premise of facts or circumstances which it knew to be untrue, or alternatively, for example, by making no real attempt to address the applicable statutory criteria, a proposition considered for instance in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Gummow J). I think that those submissions of Counsel for the Minister are correct. Having closely read the Tribunal's lengthy reasons for decision, I am entirely unconvinced as to the presence of any such error of law, or otherwise as to exceptionable conduct of that description, committed by the Tribunal, such as to warrant review under the bona fides exception. 22 Further as to the case of actual bias advanced by the Applicant, Counsel for the Minister in my opinion correctly contended that the Applicant's assertions to the effect that the Tribunal had made erroneous findings of fact, and did not give sufficient weight to particular matters of evidence of supposed significance, did not evidence bias on the part of the Tribunal, and were instead findings relating to the merits of its decision, and could not be reviewed by this Court, whether under the strictures of the new privative clause regime, or the wider statutory regime which preceded its introduction. In response to the Applicant's further contention that the Tribunal had been affected by bias due to what was alleged to be 'hostile and partisan' questioning on the part of the Tribunal, there was not proffered any viable basis for that contention, and the same is also without foundation. Indeed, I would observe that the transcript of the Tribunal hearing, annexed to the affidavit of the Mr Kalle which I granted leave to file on 3 May 2002, disclosed no pattern or theme of questioning which could be said to be either inappropriately hostile or partisan, or to stem explicitly or implicitly from a biased mind. 23 I therefore find and conclude that the evidence in the proceedings does not warrant the finding that the Tribunal failed to make any bona fide attempt to exercise its statutory powers. On the contrary, I find that the Tribunal undertook a careful and bona fide appraisal of the material which it purportedly examined, and the criticisms of the Applicant have no purported foundation, much less a foundation which might circumvent the operation of the privative clause. 24 As to the second ground for review, namely the Tribunal's alleged failure to comply with s 424A of the Act, which was said to relate to the absence of provision to the Applicant of the full text of "articles", and further relevant information about the Rakah organisation in its possession, I firstly observe that there was in fact some information provided by the Tribunal to the Applicant for comment concerning the Rakah organisation, being the information contained in the letter of the Tribunal to the Applicant dated 13 December 2001. In my opinion, that information was sufficient to signal to the Applicant that the Tribunal had prima facie formed a view about the absence of risk of persecution in Syria to persons with an allegiance to Rakah, and to provide to the Applicant the opportunity to adequately address the Tribunal on that subject. In any event, and fatal to the Applicants s 424A argument, the Tribunal is only obliged, in the light of s 424A(3)(a) to provide information which specifically pertains to the Applicant. Indeed, on the strict interpretation of s 424A, the Tribunal had no obligation thereunder to flag to the Applicant the material to which it referred in its letter of 13 December 2001, and it was in any event under no obligation to supply the full text of the same. The proposition that a Tribunal's obligation under s 424A does not extend to country information, but rather applies to information about the Applicant personally, was confirmed in this court in, (amongst others), Thairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 and Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631. 25 My conclusions on the above render it unnecessary for me to define the extent or scope of permissible administrative review upon the ground of actual bias as a supposedexception to the adverse operation of the new privative clause regime. I merely add the observation that the question would only require consideration in exponentially more extreme circumstances to those in the present case, for example, in circumstances such as those referred to above at [21]. Moreover, it would be an enigmatic result if, as a matter of statutory interpretation, the repeal of s 476 of the Act, containing as it did a ground for review as to actual bias (s 476(1)(f)), would allow for a continuation of that ground by the sidewind of an exception to the privative clause simultaneously enacted. This Court has rejected the notion that the somewhat related doctrine of denial of natural justice has survived the introduction of the privative clause: see Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 and Hely J in Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346. In Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617, I followed the dictum in NAAX and Park to the effect that there is no implied duty incumbent on a Tribunal to afford procedural fairness by way of supply of information, so as to entitle review in the light of the privative clause. 26 I therefore dismiss the application for review, and order that the Applicant pay the Respondents' costs of the proceedings. 27 There is one further matter, raised by the Minister at the hearing, which requires resolution, and that relates to the constitution of these proceedings, whereby the Refugee Review Tribunal has been named as a respondent to this application for review. In my opinion, there is no utility in the course adopted by the Applicant of adding the Tribunal as a party to these proceedings. That course is implicitly precluded by the terms of s 479 of the Act, and moreover, is a course fundamentally rejected in detailed reasons by Sackville J in this Court in NAAA v Minister for Immigration and Multicultural Affairs [2002] FCA 362. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 21 May 2002 Solicitor for the Applicant: Steindl Bell Lawyers

Counsel for the Respondent: S Lloyd

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3 May 2002

Date of Judgment: 3 May 2002