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MIGRATION - Application for review of decision of the Refugee Review Tribunal - homosexuality grounding well-founded fear of persecution for Convention reasons - conduct of the Tribunal - lack of bona fides - Tribunal reasons evidenced closed mind based on its interpretation of homosexual identifiers - bias found - declaration of invalidity.

WAAG v Minister for Immigration [2002] FMCA 191 (30 August 2002)

WAAG v Minister for Immigration [2002] FMCA 191 (30 August 2002)
Last Updated: 4 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAG v MINISTER FOR IMMIGRATION
[2002] FMCA 191



MIGRATION - Application for review of decision of the Refugee Review Tribunal - homosexuality grounding well-founded fear of persecution for Convention reasons - conduct of the Tribunal - lack of bona fides - Tribunal reasons evidenced closed mind based on its interpretation of homosexual identifiers - bias found - declaration of invalidity.



Migration Act 1958 (Cth)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

R v Murray; Ex parte Proctor (1949) 77 CLR 387

Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556

SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71

Wu Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 766

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

NAAG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

NACL v Refugee Review Tribunal [2002] FCA 643

SBAN v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 591

Applicant:
WAAG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 65 of 2002



Delivered on:


30 August 2002



Delivered at:


Sydney



Hearing Date:


13 August 2002



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Mr G Barrett QC appearing pro bono



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Mr K Tredrea



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The Court declares that the decision of the Refugee Review Tribunal given on 19 September 2001 is invalid and of no effect.

(2) The respondent pay the applicant's costs in the sum of $4,500.00

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


WZ 65 of 2002

WAAG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian citizen who seeks protection from Australia consistent with its obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). These obligations find legislative force in ss.36 and 65 of the Migration Act 1958 (Cth). The applicant arrived in Australia on 19 June 2000 and was detained by the Department of Immigration and Multicultural Affairs. On 12 February 2001 he lodged an application for a protection visa with the Department. On 2 April 2001 a delegate of the Minister declined to grant a protection visa. The applicant sought a merits review from the Refugee Review Tribunal. The Tribunal hearing which was conducted on 15 May 2001 appears to have been conducted by telephone link. Although the applicant had the benefit of an adviser and an interpreter it seems that the interpreter was not in the same room as the applicant or the Tribunal. It is also not clear where the adviser was.

2. When the applicant was interviewed at the Curtin Detention Centre he was asked why he came to Australia and he responded:

"For a hassle free life and to build my future this is the reason."

In response to the question:

"Do you have any reason for not wishing to return to your country of nationality?"

He responded:

"I don't have a political reason - I have told you the reasons and I wish to live my life in peace here."

3. This interview was conducted by a female officer of the Department assisted by another female interpreter. The results were contained in a document which was completed on 30 June 2000. On 27 February 2001 the applicant with the assistance of an adviser completed an application form for a protection (class XA) visa. Annexed to that form was a type written statement in response to questions 36-40 of the application form. These responses are found at [CB 34-39]. The responses indicate that the main reason which the applicant now put forward for leaving Iran was that he was a practising homosexual. He stated that the reason he did not refer to this matter at his arrival interview was that the interviewer and the translator were both women and he was too afraid and too shy to tell them about what he described as "my problem". The applicant stated:

"Now I understand that in Australia no one can humiliate and beat me for my sexual problem now I feel I can tell the whole truth about my life."

4. The applicant then proceeded to set out in some detail the history of his homosexual activity in Iran from the time he was seduced by a male friend of his father's until the time he left Iran. The applicant claimed that he has a well-founded fear of persecution for a Convention reason on the grounds that homosexuality was forbidden by Shariah law in Iran and sodomy is punishable by death, imprisonment, lashes or stoning. He indicated in his statement that his father had turned on him because of his sexual preferences and had gone to the Revolutionary Court and lodged a complaint against him. His father had gone with two witnesses. The applicant believed he would be in serious trouble from the authorities and made immediate arrangements to leave the country.

5. In his findings and reasons the delegate of the Minister stated:

"I accept that the applicant was reluctant to discuss his homosexuality at the first DIMA interview and accept he is homosexual and that as such can be categorised as a member of a political social group for the purposes of the definition of a refugee."

6. The delegate went on to explain why he did not believe that the applicant had a well-founded fear of persecution on account of his homosexuality if he were to return to Iran. The reasons are expressed succinctly in four paragraphs. The applicant availed himself of his right to seek a merits review of the decision of the delegate before the Refugee Review Tribunal. He was assisted by a migration consultant who provided the Tribunal with submissions and supporting material. When the matter was called before the Tribunal the document found at [CB 122] (translation) and [CB 123] was produced.

7. The Tribunal, as it was entitled to, decided to examine the claims of the applicant in their entirety. This examination therefore included consideration of the applicant's claim that he was a homosexual, even though that claim had been accepted by the Minister's delegate. It is the manner in which the Tribunal dealt with this aspect of its investigation that is the subject of the complaint by the applicant which grounds this application for review. In short, the applicant submits that the Tribunal approached this task with a lack of bona fides, with bias and with a closed mind. These allegations make the application competent notwithstanding the existence of the privative clause found in s.474 of the Migration Act. It is accepted by those appearing for the respondent that the privative clause is qualified by those matters discussed in the decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387. Those cases make it clear that if a Tribunal conducts itself in a manner which indicates a lack of bona fides the proceedings are ineffective and prerogative writs may issue in respect of the decisions made thereon.

8. The applicant submits that a perusal of the transcript together with the reasons for the Tribunal's decision indicate that the Tribunal member approached the applicant's claims concerning his homosexuality with a closed mind or one that was not capable of persuasion. The applicant submits that the remarks made in the course of the reasons for decision would tend to indicate to any reasonable person reading that decision a bias against the applicant. He also submits that the Tribunal had a fixed view of the way homosexual men in Iran should relate and when the applicant failed to demonstrate a recognition of those reference points the Tribunal assumed that he would recognise, it formed an opinion against him. It is the applicant's case that the findings on credit made by the Tribunal against the applicant were infected by the lack of bona fides and that as these findings on credit formed a substantial element of the Tribunal's reasons then those reasons are unsafe and the matter should be reheard.

9. The applicant's contention that the Tribunal exhibited in its reasons a bias against him is supported by examples of what his counsel generously refers to as "attempts at dry wit" or "parody". These are set out below:

* "The information provided by [third parties] makes no mention of such spectacular penalty [being thrown off mountains], leaving the Tribunal to wonder how all the human rights agencies ever missed it." [CB 164]

* "The Tribunal had some difficulty with the notion of the Applicant's own father putting this matter out into the public domain, so many years after actually discovering the Applicant in flagrante delicto, as Western convention sometimes puts it, and not doing anything about it at the time at all, apart from giving the lad a bit of a hiding." [CB 166]

* "The `persecution', if it can even be called that, in the respective instances of Yaqob and of the Applicant's family's supermarket helper, was short-lived and contained to (sic) a beating from the Applicant's father, as well as a period of ostracism. In the great scheme of things a beating or two from one's father is very harsh, but the Applicant also described a man who was sick and old, and who has not beaten him again since a claimed discovery some years ago, and on that occasion only briefly." [CB 172]

* "The Tribunal concludes that the Applicant should by now have learned not to do it in shops and factories or in apartment basements." [CB 172-173]

* "The Applicant's position is, of course, that matters have now gone to far to allow him to simply return to Iran and discreetly take up life there as a homosexual male." [CB 173]

* "... the authorities appear to have acted as though there were only one defendant in this case. Sodomy takes (at least) two." [CB 175]

* "it still seems odd that the Applicant, in spite of all the fear and shame, nevertheless repeatedly found intimate, exclusive, and often quite long-term sexual partners within every institution with which he was associated since the age of ten: his father's circle of close friends, his school, the chandelier factory, the army and his father's shop." [CB 178]

10. In support of his argument that the Tribunal had a fixed view of the way homosexual men in Iran should relate the following extracts are relevant:

* "There can be no tried and true inquisitorial test for establishing beyond doubt whether a person is or is not homosexual, especially given subjective states and conditions of homosexuality. Nevertheless, the Tribunal attempted to gain insights into the Applicant's outlook as a homosexual and the experiences and other phenomena that contributed to it. The Tribunal asked the Applicant which, if any, art, literature, song lyrics or popular culture icons spoke to him in his isolation from the rest of the society. The Applicant provided not one example. He said he did not understand the question. The Tribunal asked him if his ears pricked, say, when he heard of any famous, perhaps foreign artist, performer or author being banned in Iran for reasons of immorality. In reply, he said he did not understand the question. The Tribunal was not demanding that the Applicant be a leading Gide scholar or even a Marilyn Monroe fan, but it did seem odd that the sexuality he was forced to suppress in Iran did not find expression in any phenomena at all, whether in high culture or low, also considering that he claimed elsewhere to have been alert to what was happening in countries like Australia." [CB 169-170]

* "The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt's tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. ... However, the Tribunal was surprised to observe a comprehensive inability on the Applicant's part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him." [CB 179]

* "It is strange that a purportedly isolated and ostracised person does not even appear to have looked for such things." [CB 179]

11. The Tribunal's views on these matters was expressed in the following extract from its reasons:

"The Tribunal put all of these elements together: the inconsistencies about the first sexual experience; the uniformity of the relationships and of most of their conclusions; the complete absence of a "gay" circle of friends; lack of evident contact with the "gay" underground; lack of other forms of identification. Cumulatively, and in some instances on their own, these elements strongly argue a lack of reality." [CB 179]

12. The views expressed above are the major subject of these reasons for judgment but it should not go unnoticed that they were made in the context of what appears to be a total lack of understanding by the applicant. The following is an extract from the transcript:

"Mr Hardy: Well I put it to you that this isn't something that you can switch on and off [a reference to the applicant's homosexuality], it's something that, particularly if it isolates you, it can take over your whole life. It can be the lens through which you see the whole world, if you're lonely enough as a result of, or feel isolated enough as a result of being different from other people ... um here, sorry here's an example. Here's an example. If, if say, a famous Egyptian novelist wins the Nobel Prize, but he's also a homosexual who writes about, ah, you know, the love between two men. It mightn't be a big part of his story but it might be an element in the novel, right. Just say he gets banned in Iran, okay. Might not your ears prick up when you hear that that author has been banned in Iran, and you go, oh, yeah, that's another, that's just another case, just another problem.

The applicant: I don't understand it. I'm sorry.

Mr Hardy: ... See, I have to make an assessment. I might even have to ask myself are you really gay? Are you a homosexual?... And, to be frank, I've asked this question so many times and in so many ways, ah, I'm wondering why you haven't seized upon it already. You still seem to be not understanding."

13. The applicant then gives a response which indicates that he believed his homosexuality was something which he was born with and was part of him to which the Tribunal responded:

"Mr Hardy: Okay, just, fine, I've got that. Just, in this part, just wind up your thoughts on that particular subject here."

14. The principle of actual bias was comprehensively discussed by the Full Court of the Federal Court in Jia v MIMA (1999) 93 FCR 556 where RD Nicholson J observed at [158]:

"... for actual bias to be established there must be evidence of "a closed mind to the issues raised", "preliminary views incapable of alteration", prejudgment of the case at least in some respect, real although not necessarily intentional."

15. Cooper J defined the principle further at [82]:

"The fact that a decision-maker has formed a conclusion about an issue involved in the inquiry does not constitute bias on the part of the decision-maker ... It must be shown that the decision-maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found. As a finding of actual bias requires a factual finding of a state of mind, it may be proved from the statements or conduct of the decision-maker or as a matter of inference from such statements or conduct. Such statements and conduct, however, must be viewed in the context of the decision-making process as a whole."

16. In the more recent case of SCAA v MIMIA [2002] FCA 668 von Doussa J discussed the nature of what a finding of actual bias must entail (at [38]):

"In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v MIMIA [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias."

17. It must be borne in mind that in order to establish bias, it is not enough that the decision-maker displays irritation or impatience or even uses sarcasm (see Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 123 per Wilcox J). Further the fact that a Tribunal's questioning may, at times, reveal unfamiliarity or even ignorance of an applicant's social, religious and cultural background or be insensitive or hostile is not to be equated with the possession of a closed mind (see Wu Chen v MIMA [2001] FCA 766 per Ryan J at [42]).

18. In SAAG v MIMIA [2002] FCA 547 at [33] - [35] Mansfield J considered the circumstances in which a decision of an administrative decision-maker might be found not to be a bona fide attempt to exercise its power. He said at [35]:

"I am also mindful of the judicial strictures against making a finding of lack of good faith on the part of an administrative decision maker too readily. The reasons for that approach are clear. Again, they are discussed by Finn J in Daihatsu at [32] and [36]. It will be a rare and extreme case in which an administrative decision maker will be shown not to have acted in good faith. I am conscious that I should not:

"make the leap too readily from factual error or faulty reasoning (even serious factual error or misconceived reasoning) to a finding ..."

of lack of good faith."

19. In NAAG of 2002 v MIMIA [2002] FCA 713 Allsop J also considered the concept of a bona fide attempt to exercise power. He said at [13]:

"... if a decision can be described as capricious or arbitrary, that, and the reasons why one can say that, might be very relevant to the question whether there was a bona fide attempt to exercise the power. But the question is whether it was bona fide, not whether it had some other defect which might found a claim of jurisdictional error."

20. And at [24]:

"It is not appropriate to attempt a comprehensive definition of the phrase `bona fide'. Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an `honest' attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt ]is made, knowingly, to act conformably with duty. Heerey J in SBAP v RRT [2002] FCA 590 at [47] said that the phrase `bona fide' involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v MIMIA [2002] FCA 547 at [34] to [36]. It is unnecessary for me to express a view on the conclusion his Honour reached in that case after a careful analysis of the facts. To the extent it was submitted before me that his Honour's approach was one which enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker, I reject that submission. The principles applied by his Honour were, with respect, correct."

21. This passage was approved in NAAV v MIMIA [2002] FCAFC 228 by Beaumont J at [107] - [109] and von Doussa J at [635] - [637] (Black CJ concurring).

22. The applicant submits that the Tribunal in reaching its decision was biased and therefore did not make a bona fide attempt to exercise its power. The Court is asked to infer actual bias from the reasons for decision of the Tribunal and the transcript of the hearing conducted by the Tribunal, at which the applicant gave oral evidence. I have read the transcript of the hearing before the Tribunal. Questions put by the RRT to the applicant indicate that the Tribunal member was highly suspicious about aspects of the applicant's claim. A reading of the transcript of the hearing suggests a pre-determination on the part of the Tribunal. There is clear evidence that the Tribunal member had preliminary views incapable of alteration regarding male homosexuals.

23. The existence of a closed mind is best illustrated by the questioning of the applicant as to his feelings about matters which the Tribunal regarded as sympathetic to or of interest to homosexual males. The questions, responses and conclusions drawn have been recited at [10] of these reasons. They reveal a pre-formed template into which the Tribunal considered all homosexual males would fit and that if an applicant who claimed to be a homosexual did not respond appropriately to these questions he must ipso facto not be a homosexual. This is not the same as the litany of jurisdictional errors found in the often cited passages from Craig v South Australia (1995) 184 CLR 163 or MIMA v Yusuf (2001) 180 ALR 1. It is an indication of a completely closed approach. There is nothing in the transcript or the reasons for decision to suggest that the Tribunal was prepared to accept the applicant as a homosexual in the absence of what it considered to be satisfactory answers to the questions. This closed mind, coupled with the nature and tone of the questioning and the conclusions reached from the responses received seem to me to clearly meet the criteria set by von Doussa J in SCAA quoted at [15] above.

24. In NACL v RRT [2002] FCA 643 at [25] Conti J questioned whether s.474 might not prevent review even in cases of actual bias. I would be reluctant to make such a finding. The interpretations of the exceptions to the Hickman principle clearly accept that lack of bona fides can be evidenced by bias. This case, to my mind exhibits all of the necessary criteria for such a finding.

25. I would find in favour of the applicant. In SBAN v MIMIA [2002] FCA 591 Mansfield J dealt with the matter by declaring the decision to be invalid and finding that the applicant had an application before the Tribunal for review of the decision of the delegate of the respondent with which the Tribunal should deal. I would propose to make the same finding. I have no reason to believe that the Tribunal, differently constituted, will not in due time review the delegate's decision in accordance with law. However, if for any reason the applicant requires me to make formal orders in the nature of certiorari or prohibition then I give liberty to apply.

26. This was a matter in which Lee J gave a referral certificate pursuant to Order 80 sub-rule 4(3) of the Federal Court Rules. This certificate entitled the applicant to the advice and assistance of pro bono counsel. Counsel has chose to appear at the hearing and his client has been successful. In those circumstances I see no reason why an order for costs in favour of the applicant should not be made. I order that the respondent pay the applicant's costs which I assess at $4,500 pursuant to Part 21.02(2)(a) of the Federal Magistrates Court Rules noting in this case that the applicant was represented by Queen's Counsel.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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