Jit, Nurinisa v The Minister for Immigration and Multicultural Affairs

[1998] FCA 511

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - applications for refugee status and protection visas refused - application for review - grounds of review as set out in s 476 of the Migration Act 1958 (Cth) - definition of refugee in Refugees' Convention - whether error in understanding of applicable law - whether breach of procedure - substantial justice - Eshetu discussed

Migration Act 1958 (Cth) - s 476

Refugees' Convention

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300.

Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 5 November 1997, Davies, Burchett & Whitlam JJ).

NURINISA JIT & ORS v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 259 of 1998

DAVIES J
15 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 259  of   1998

BETWEEN:

NURINISA JIT
FIRST APPLICANT

MANINDER JIT
SECOND APPLICANT

DEVINDER JIT
THIRD APPLICANT

AND:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

DAVIES J

JUDGE:

DATE OF ORDER:

DAVIES J
15 MAY 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

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	NG 259 of 1998

BETWEEN:

NURINISA JIT

FIRST APPLICANT

MANINDER JIT
SECOND APPLICANT

DEVINDER JIT
THIRD APPLICANT

AND:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application, brought under s 476 of the Migration Act 1958 (Cth), seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") which affirmed a decision not to grant protection visas to the applicants, which had been sought on the basis that they were refugees as defined in Article 1A(e) of the Refugees' Convention.

The Migration Act provides, inter alia:

"420(1)   The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)   The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and  

(b) must act according to substantial justice and the merits of the case."

"476(1)  Subject  to  subsection  (2),  application  may  be  made  for  review  by  the  Federal  Court  of  a  judicially-reviewable  decision  on  any  one  or  more  of  the  following  grounds. 

(a)that  procedures  that  were  required  by  this  Act  or  the  regulations  to  be  observed  in  connection  with  the  making  of  the  decision  were  not  observed;

...

(e)that  the  decision  involved  an  error  of  law,  being  an  error  involving  an  incorrect  interpretation  of  the  applicable  law  or  an  incorrect  application  of  the  law  to  the  facts  as  found  by  the  person  who  made  the  decision,  whether  or  not  the  error  appears  on  the  record  of  the  decision; 

(f) that  the  decision  was  induced  or  affected  by  fraud  or  by  actual  bias; 

... 

(2)The  following  are  not  grounds  upon  which  an  application  may  be  made  under  subsection  (1): 

(a)that  a  breach  of  the  rules  of  natural  justice  occurred  in  connection  with  the  making  of  the  decision; 

(b) that  the  decision  involved  an  exercise  of  a  power  that  is  so  unreasonable  that  no  reasonable  person  could  have  so  exercised  the  power. 

..."

The definition in the Refugees' Convention defines a refugee as a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

Ms Jit and her two daughters arrived in Australia on 21 November 1997.  They had Indonesian passports and were on route to New Zealand.  As their passports were not genuine, they were not permitted to proceed.  Applications for refugee status and protection visas were lodged.  Ms Jit gave evidence to the Tribunal that she, her Indian-born husband and her children had fled Kyrgyzstan about a year previously and had travelled to Indonesia.  Ms Jit said that her husband was still in Indonesia and that she and the children had set out for New Zealand where she intended to ask for asylum.  The Tribunal summarised the evidence given by Ms Jit:

"She said that her father was an ethic Russian but was raised by an Uzbek family and given an Islamic name.  ... She lived the traditional life of a Muslim female until 1987, when she commenced a nursing course.  ... At the end of December 1990 five Kyrgyzstan policemen came to her family home and ordered her to leave Kyrgyzstan because of their Uzbek ethnicity.  They did not leave and the following day 12 armed men came to the house and took her and her two cousins to their headquarters where they were held for several days.  She was beaten and raped while in detention.  She has not seen her male cousin since that time.  When she was released and returned to the family home, she found that it had been burned down.  She and her family went to Tokmak, a town to the east of Bishkek near the Kazakhstan border, where they hid in the home of a Jewish friend.  A few months later, Ms Jit met her future husband, an Indian Sikh named Bikkam Jit Singh, from Rajpur who had fled India because of problems with the government and was also in hiding.  She and her husband lived with her Jewish friend for a time, but shortly afterwards began to have problems with Muslims because she had married a foreigner and a non Muslim.  She was taken by force and imprisoned for a week and a half in a `mechet' during which she was tortured and threatened by about ten men who told her that they were obliged to kill her because she had broken Shari'a law.  When she returned home she discovered that her husband had also been beaten.  In 1992 she and her husband decided to return to Bishkek  At the time she was pregnant.  Ms Jit and her husband lived with her mother for three years.  At the beginning of 1995 Ms Jit's husband found out that the Indian Embassy knew where he was and he fled Bishkek because he feared that he would be arrested and returned to India where there was a strong chance he would be killed.  She did not go with him because her children were too small and weak.  In January 1996 her husband fled Kyrgyzstan and went to Indonesia.  In March or April 1996, some Muslim officials went to her home and took her daughters from her.  They also told her that she had no right to her children because she had married a foreigner of a different religion and that they raise the children as Muslims.  Ms Jit went to see the Imam in Bishkek and begged him to return her children.  He finally agreed to return her children, provided she left Kyrgyzstan.  She left with only a few possessions and went to Indonesia, arriving there on 15 April 1996."

Had this evidence been accepted, Ms Jit and her daughters would have been accepted as refugees having a well-founded fear of persecution in Kyrgyzstan for reasons of race and religion.

The Tribunal, however, rejected Ms Jit's evidence on the ground that it was inconsistent with the information available to the Tribunal concerning conditions in Kyrgyzstan.  In this respect, it is sufficient for me to set out a letter which Ms Jit's solicitor, Mr Lombard, had received from the Kyrgyz-American Bureau on Human Rights and Rule of Law (KABHRRL) in response to a request for information.  KABHRRL's reply dated 8 January 1998 stated:

"The case your client described could have happened as any violation of law is possible.  But in judicial and law-enforcement practices there are remedies available against such offences as threats to commit violence or to cause damage to personal integrity.  Government control over religious groups has significantly increased in 1997 (to a degree where we could express our criticism that it violates freedom of conscience).  We believe that there are hardly any religious groups that could freely act in the way your client described.

Individuals can be involved in illegal deeds.  As for the existence of any pattern of government-instigated Islamic harassment, the answer will be: definitely, not.

Women's rights are generally observed by all branches of power, the main problem being the inability to guarantee economic rights.  In southern provinces with stronger Moslem traditions, women are subject to moral limitations.  Those limitations are imposed by family rules, not by the law of the State.  In any case a woman, if offended or harassed, can seek redress through civil courts, and public opinion will be in her favour as a rule.  There is a special shelter in Bishkek (capital city) for women - victims of domestic violence which functions under the auspice of one women's NGO (the total number of NGOs is about 60).

Mixed marriages are quite frequent in Kyrgyzstan, they are both inter-ethnic and inter-religious by nature.  Kyrgyz society is a highly tolerant (with few exceptions) in this respect/  As an example: three women out of five working the Bureau had gone into mixed marriages or were born into inter-ethnic families, or both.

Any individual case is peculiar and should be dealt with individually.  But it is unlikely that there exists, for your client, any grounded fear of persecution on the basis of her personal decision to enter a mixed marriage."

The application for an order of review filed with the Court is a rather confusing document which mixes concepts of breach of procedure within s 476(1)(a), errors of law in the nature of an incorrect interpretation of the applicable law or an incorrect application of the law as to the facts as found within s 476(1)(e) and the concept "substantial justice and the merits of the case", which appears in s 420(b). I shall therefore again say something on these provisions as there may be some confusion from the manner in which my reasons for judgment were expressed in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300.

The judges comprising the Court in Eshetu, Burchett & Whitlam JJ and myself, also heard about the same time the case of Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, Davies, Burchett & Whitlam JJ), the decision which was not ultimately delivered until much later, 5 November 1997.  In both cases, the interpretation of the Migration Act, particularly s 476, was in issue having regard to the terms of s 476(2). In Eshetu, the issue was the ambit of s 476(1)(e), having regard to the exclusion of the ground of unreasonableness by s 476(2). In Velmurugu, the issue was the ambit of s 476(1)(a), having regard to the exclusion from review of a breach of the rules of natural justice by virtue of s 476(2). The same basic principles for interpretation were involved and it was convenient to deal with the issues in the reasons for judgment in Eshetu, leaving the consideration of the facts of Velmurugu's case for later consideration. I considered it convenient to start my reasons for judgment by a discussion of s 420 of the Migration Act, including the provisions of s 420(2)(b) which, in my view, imported both a procedural requirement which fell within s 476(1)(a) and a substantive requirement which fell within the words "the applicable law" in s 476(1)(e). Perhaps resulting from this structure of my reasons in Eshetu, it seems to have been thought by some that decisions can be challenged under the Migration Act as if there were a ground of review that the decision did not accord with the substantial justice and merits of the case.  That is not so and I have, on more than one occasion, said so, including in Velmurugu. 

The grounds of review are set out in s 476. The ground established by s 476(1)(a) is that of breach of procedures required by the Act or the Regulations to be observed. The principal provision dealing with procedures is s 420. It requires that a Refugee Review Tribunal is to pursue the objective of providing a mechanism for review and is fair, just, economical, informal and quick and s 420(2)(e) makes it clear that the procedure adopted must be one which enables the Tribunal to arrive at the substantial justice and merits of the case. When they appear in statutes, the words "the substantial justice and merits of the case" or "substantial justice" have an operation principally in relation to the procedure to be adopted. At 304 of Eshetu, I mentioned a number of cases where the operation of the concept in relation to procedure has been discussed.

Section 420(2)(b) also has a substantive effect and forms part of the applicable law referred to in s 476(1)(e). In the area of refugee decisions, it would seem to be a direction to the Tribunal to get to the crux of the case, avoiding technicalities and making due allowance for matters such as the problems of proof which claimants encounter and the stress which many have undergone. Such an approach would be implied, whether or not s 420(b) appeared in the Act. At 305 of Eshetu, I mentioned some cases in which the substantive effect of similar provisions had been considered.  One such case in which the provision was relied upon was Re Pash and Repatriation Commission (1938) 8 AAR 184 where the Administrative Appeals Tribunal applied an instruction to do "substantial justice" to justify assessing the applicant's degree of incapacity for itself rather than in accordance with a non-statutory guide which appeared to it to arrive at an inappropriate result. The substantive elements of s 420(2)(b) probably add little to the function which would otherwise be reposed in a Refugee Review Tribunal or, for that matter, an Immigration Appeals Tribunal. However, the words are in the statute and therefore form part of the applicable law which a Refugee Review Tribunal must apply.

However, no ground of review is available that the Refugee Review Tribunal failed to decide the matter "in accordance with the substantial justice and merits of the case."  The ground is that provided by s 476(1)(e), that the Tribunal erred in its interpretation of the applicable law or failed to apply that law to the facts as found. If, for example, a Refugee Review Tribunal should consider that the terms of s 420(2)(b) entitled it to make a decision otherwise than in accordance with law, the decision could be set aside under s 476(1)(e) on the ground that the Tribunal had made an error in the interpretation of the applicable law. Cf Collins v Repatriation Commission (1980) 48 FLR 198; Kumar v Immigration Review Tribunal (1992) 36 FCR 544.

In the light of that introduction, I turn now to the challenges to the decision which were pressed by Ms Maria Linkenbagh, who appeared for the applicant. I shall deal first with the procedural issues arising under s 476(1)(a).

On the day of the hearing, 22 January 1998, a member of the staff of the Refugee Review Tribunal made a request to KABHRRL for information concerning Kyrgyzstan.  The following five questions were asked:

"1.Was there widespread violence between people of Uzbecki ethnicity in the capital of Bishkek, including `ethnic cleansing' involving the expulsion of people of Uzbek ethnicity from the city during the time that violence broke out in Osh in June 1990?

2.Do people of Uzbecki ethnicity face serious discrimination or violence in Bishkek today.  If so, who is responsible for this violence and what is the response of the government.

3.Are children of a Muslim mother married to a non-Muslim man taken by the local Iman to ensure that they are raised as Muslims?  If religious leaders took a couples' children in these circumstances, what would the attitude of the authorities be and could the parents take action to regain custody of their children?

4.Do the majority of Muslim women in Kyrgyzstan, particularly in Bishkek, wear a veil which covers the bottom half of their face?

5.What is the likely treatment of a Muslim woman who has converted to Christianity?".      

I need not set out the response which was, in general, inconsistent with the conditions as described by Ms Jit.   When the reply was received, it was made available to the applicants' adviser, Mr Lombard, and he responded to it before the decision was given. 

A submission put by Ms Linkenbagh was that the Tribunal had no power to make enquiries of this nature.  Ms Linkenbagh submitted that the only power the Refugee Review Tribunal had  was to act under s 427(1)(d) to require the Secretary to arrange for the making of any investigation that the Tribunal thought necessary.  Ms Linkenbagh also submitted that, whether or not the Tribunal had the authority to make the enquiry, it was inappropriate that it should do so.  In my opinion, the Migration Act establishes the Refugee Review Tribunal as a non-adversarial tribunal in which it is the function of the Tribunal not only to hear the applicant for refugee status but also to make all enquiries which it thinks are necessary to enable it to arrive at the substantial justice and merits of the case. Section 420(4) of the Act enables a Refugee Review Tribunal to come to the decision that is most favourable to the applicant on the written material which is before it. If the Refugee Review Tribunal is unable to do so, then s 420(5) of the Act requires that the tribunal must give the applicant an opportunity to appear before it to give evidence. The tribunal may obtain "may obtain such other evidence as it considers necessary." This power, in my opinion, authorises a Refugee Review Tribunal to take the step which it took in the present case. Section 420(7) goes on to provide that the tribunal may "give information to the applicant and to the Secretary".  This confirms that the tribunal may obtain information for itself and if appropriate to communicate that information to the applicant and to the Secretary.  This function accords with the general manner of proceeding which is specified.  The Act casts upon the tribunal the obligation of conducting the enquiry into the facts.  Section 427(6) provides that a person appearing before the tribunal to give evidence is not entitled to be represented before the tribunal or to examine or to cross-examine any other person appearing before the tribunal.  Section 425(2) provides that the tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 

The step taken by the Tribunal in the present case was, in my opinion, authorised by the Act.  It was, moreover, a step which accorded with the practice of other Refugee Review Tribunals.  I have some concerns about the practice for I think there is a tendency for decision-makers to place undue weight upon the responses obtained from the sources they have approached.  In the present case, however, I am of the view that the Tribunal properly sought information about the affairs in Kyrgyzstan and, as there is no evidence which shows that the information obtained was incorrect or unreliable, I see no error in the course which the Tribunal took. 

There is no evidence before me that KABHRRL was not the appropriate body from which to seek information.  Mr Lombard criticised KABHRRL to the Tribunal, alleging that it may not be an entirely independent body.  However, no support for this contention was given.  Mr Lombard himself wrote to KABHRRL and I have set out its answer above.  Mr Lombard also wrote to other bodies in Kyrgyzstan.  If they provided contrary information, Mr Lombard does not appear to have supplied it to the Tribunal.  The Tribunal gave this information about KABHRRL:

"According to information contained on the US based Center for Civil Society International (CCSI) (Internet website, the KABHRRL is a non-government organisation which was established following an international human rights conference held in Bishkek in 1992.  It monitors human rights violations, assists victims of human rights abuses to appeal to government authorities and international human rights groups, runs education programs and is endeavouring to establish a network of human rights organisation in Kyrgyzstan.  It is listed in the World Directory of Minorities as one of the minority based and advocacy groups operating in Kyrgyzstan."

Ms Linkenbagh submitted that the questions asked were inappropriate.  She said they were leading questions which were not framed in neutral terms.  She submitted that useful answers could not be obtained to such questions.  However, in my opinion, the questions asked were clear and appropriate questions which were not weighted in such a way as to encourage a preferred answer.  It appears to me that the questions were of such a nature as to provoke answers which would be useful in the consideration of the applicants’ claims, which they did.

Ms Linkenbagh further submitted that the questions should not have been sent without consultation with Mr Lombard, that he should have been asked to contribute to the formulation of the questions that were asked and the choice of the body to which they were directed.  Having regard to the obligation to provide a mechanism of a review that was economical, informal and quick, it seems to me that the Tribunal was quite entitled to make the enquiry which it did without consultation with the applicants’ representative.

Ms Linkenbagh further submitted that it was unfair for the Tribunal to formulate the questions as it did on 21 January 1998 and to send off the request to KABHRRL on 22 January 1998 without making the fact known during the course of the hearing on 22 January 1998.  I see no error in the sequence of events.  The Tribunal could not, of course, have relied upon the response from KABHRRL without disclosing it to Mr Lombard in time to allow Mr Lombard to provide an answer.  However, it was disclosed and Mr Lombard was given an adequate opportunity to deal with its reply.  He himself had already written to KABHRRL and received the reply I have mentioned.  He also contacted a number of other non-government organisations based in the former Soviet Union and in Kyrgyzstan. 

The next error in procedure alleged by Ms Linkenbagh was that, on receiving the response from KABHRRL, the Tribunal cancelled a similar request which it had made to the Department of Foreign Affairs and Trade.  A handwritten notation of the member constituting the Tribunal shows that this step was taken as she considered the information from KABHRRL to be sufficient and that a response from the Department of Foreign Affairs and Trade was likely to take time, which was undesirable as the applicant was in detention.  I see no impropriety or unfairness in this step.  It would not seem that Kyrgyzstan was a country with which the Department of Foreign Affairs & Trade would have any intimate knowledge.  It was likely that KABHRRL was far more familiar with the relevant circumstances prevailing than was the Department.  The step taken by the Tribunal seems to me to have been entirely appropriate.

Ms Linkenbagh submitted that, if a Refugee Review Tribunal makes enquiries as were made in this case, then it should do it in a manner which affords substantial justice to the claimant and that a Refugee Review Tribunal was obliged in such cases to make neutral enquiries of apparently independent sources. I do not disagree with this point. The procedures adopted by a Refugee Review Tribunal must be fair and just, as s 420(1) requires. However, it seems to me that what was done in this case was fair and just. The Tribunal desired to be better informed of the conditions in Kyrgyzstan at the relevant time, so that the applicants’ claims could be properly assessed. The making of the enquiry assisted the proper consideration of the applicants’ claims.

Ms Linkenbagh submitted that the Tribunal was unduly selective in the country information to which it had regard and, in particular, placed too much weight upon the response from KABHRRL and not enough weight upon the submissions made by Mr Lombard.  However, I cannot draw the conclusion that the Tribunal failed to give attention to all the material which was before it.  A Tribunal cannot ordinarily be expected to refer to every piece of information to which it may have had regard.  Decisions would be of inordinate and inappropriate length if that were so.  The information which has been put before me is so meagre, for Ms Linkenbagh chose not to put before me the relevant files of the Refugee Review Tribunal or the Department of Immigration and Multicultural Affairs, that I could not draw any inference that there was any undue selection of material by the Tribunal.  Indeed, there is no evidence before me that the circumstances in Kyrgyzstan at the relevant time as stated by the Tribunal were other than correct.

I turn now to s 476(1)(e). Consideration of this ground of review is complicated by the fact that there was no clear submission made relating points relied upon to the ground stated in 476(1)(e) that there be an incorrect interpretation of the applicable law or an incorrect application of that law to the facts as found. I therefore merely mention some of the made points made.

The application alleged that the Tribunal failed to give to the applicants the benefit of the doubt.  But it is not the law that an applicant must be believed.  The law is that the applicants’ claims should be assessed in the light of the decision-maker's understanding of the conditions prevailing in the country of nationality.  As McHugh J said in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 428, when speaking of the Refugees' Convention:

"It is unlikely, therefore, that a State party was expected to give refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's own understanding of conditions in his or her country of nationality."

Ms Linkenbagh further submitted, inter alia:

"The method used by the Tribunal in reaching its decision was to select aspects of the factual history and make successive findings that the evidence of the applicant is not accepted.  This approach is flawed and fails to follow Chan v Minister (1989) 169 CLR 379. The Tribunal should have asked whether the applicant had a subjective fear, whether she left Kyrgyzstan because of that fear, and whether that fear is well-founded, taking into account circumstances in her country at the time of the hearing."

If this submission means that the Tribunal was not entitled to reject the applicants' version of events, I reject it.  The present is not a case such as Eshetu where Burchett J and I considered that the Refugee Review Tribunal had not given enough attention to the individual circumstances of the applicant.  In the present case, the Tribunal rejected the applicants’ story as true.  It was open to the Tribunal to take that view for the story was not only, on its face, a strange one, not being such a cogent and plausible story as inspired confidence in its narrator, but was also inconsistent with conditions operating in Kyrgyzstan at the time.  I cannot draw from the reasoning of the Tribunal any inference that the Tribunal erred in its understanding of the applicable law or that there was any incorrect application of that law to the facts as found by the Tribunal.  Having rejected the applicants’ story, there were of course no facts on which the Tribunal could have found in the applicants’ favour.

It was submitted that the Tribunal should not have rejected Ms Jit's evidence as there was a psychological report before the Tribunal which showed that Ms Jit suffered from post-traumatic stress disorder and depression, consistent with her having suffered the experiences she related.  But this was simply one part of the evidence which the Tribunal had before it.  The Tribunal took the report into account.  The report did not prove that the events described  by Ms Jit had in fact occurred, merely that her condition was consistent with them.  The existence of a post-traumatic stress disorder indeed provided a basis for querying the evidence given.  The Tribunal accepted that Ms Jit had suffered trauma and stress.  Apart from being satisfied that this had not occurred in the circumstances described by Ms Jit in her evidence, the Tribunal was not satisfied as to what the facts were.

The last point raised by Ms Linkenbagh under s 476(1)(e) arises from the following statement made by the Tribunal:

"To be eligible for a protection visa an applicant must have a well founded fear that they will be persecuted for a Convention reason on return to their country of nationality.  This means that they must be afraid to return to their country of nationality and there must also be a real chance that they will face serious harm or discrimination or an abuse of their fundamental human rights in that country within the reasonably foreseeable future."

(Emphasis added.)

Ms Linkenbagh said that the words "within the reasonably foreseeable future" imported a wrong test and that the relevant time was the time when the claim was assessed.  However, the Tribunal was perfectly correct.  The issue of persecution is to be considered in relation to the claimant's return to the country of his nationality.  The time of assessment of the likelihood of persecution is the date of the decision, not the date of the application for a protection visa.  But the assessment is made in respect of the return of the claimant to the country of his nationality.  The question is whether the claimant is likely to suffer persecution if he returns to his own country.  That involves looking at the reasonably foreseeable future. Cf  Mok v Minister for Immigration, Local Government & Ethnic Affairs No 1 (1993) 47 FCR 1 at 66.

Finally, issues were raised under s 476(1)(f). It was said that the conduct and reasons of the member of the Tribunal demonstrated actual bias.

I consider that the words "actual bias" in s 476(1)(f) refer to that form of bias which the law would consider to be sufficient to set aside a decision of a domestic forum acting under rules resting upon a consensual basis. The words were so read by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs, (unreported, 18 October 1996) and by North J in Wannakuwattewa v Minister for Immigration & Ethnic Affairs, (unreported, 24 June 1996).  An example of actual bias may be seen in the facts discussed in Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601. The test is not whether a fair-minded person might reasonably apprehend or suspect that the decision-maker had prejudged the case but whether the decision was induced or affected by actual bias. In the refugee field, a finding of actual bias was made in Sun Zhan Qin v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, where the principle I have mentioned was applied.

In the present case, bias was said to be proved by the following points:

• asking questions (of KABHRRL) which in their terms challenge the history given by the applicant in advance of the oral hearing and without notice to the applicant

• asking leading questions

• ignoring the response of the Indian High Commission which was supportive of the applicant's stated history

• failing to mention the enquiry of the Indian Embassy to the applicant or in the reasons

• failing to exercise caution as to the status of KABHRRL

• consistent preference for the opinion of KABHRRL over other sources of information

• abandoning the enquiry of DFAT because the KABHRRL information `appears to be sufficient'

• failing to inform the applicant of the DFAT enquiry or the fact that it was abandoned

• failing to mention the DFAT enquiry in the reasons

• discounting of the psychological evidence"

I have already dealt with many of these points.  I find no evidence of bias on the Tribunal's part in the questions which it asked of KABHRRL or in its placing weight on those answers or in its failing to inform the applicants or Mr Lombard during the hearing of the enquiry which it was proposing to make.  I find no evidence of bias in the Tribunal's reliance upon the answer received from KABHRRL for there is no evidence before me which shows that those answers were not generally in accord with the available country information.  I find no evidence of bias in the fact that, having received the reply from KABHRRL, the Tribunal abandoned its enquiry of the Department of Foreign Affairs & Trade or that it failed to inform the applicant of that enquiry or of the fact that it was abandoned.  There was nothing of which the applicants or their representative ought to have been informed.  I see no basis in the fact that, in the written instruction which the member constituting the Tribunal gave to the research officer to discontinue the enquiry to the Department of Foreign Affairs & Trade, the member said that the information received "appears to be sufficient".  That merely indicated that the member had sufficient information about Kyrgyzstan against which to consider the applicants' claims.  I cannot read into the words the inference sought to be drawn by Ms Linkenbagh that the answers received were accepted because they were thought by the member to be sufficient to destroy the applicants' case.

I see no evidence of bias in the Tribunal's view that the psychological report did not prove that the facts as stated by Ms Jit had actually occurred.  The report did not have that effect.  I see no evidence of bias in the fact that the Tribunal had made an enquiry as to whether there had been an Indian Embassy in Kyrgyzstan in 1995.  The Tribunal made no comment about that because the Tribunal did not discuss the situation of the husband.  The existence of the Indian Embassy was irrelevant to the matters which the Tribunal did discuss.  It is, actually, an interesting point of the case that, if the husband left Kyrgyzstan and went to Indonesia because he feared that otherwise he would be returned to India, that action would in itself have provided sufficient reason for the applicants also to leave Kyrgyzstan and to go to Indonesia.  However, the Tribunal did not debate that aspect of the matter.

I am not satisfied that there was any reviewable error in the Tribunal's decision.  The application will be dismissed with costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Dated:             15 May 1998

Solicitor for the Applicants:	Ms M Linkenbagh Houston Dearn O'Connor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 1998
Date of  Judgment:	15 May 1998