NAOX v Minister for Immigration

[2006] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 434

MIGRATION – RRT decision – Bangladeshi men claiming homosexual relationship – matter remitted by High Court – open to Tribunal to reconsider whether homosexual – no actual nor apprehended bias – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 16
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 415, 420(1), 420(2), 422(1), 422(2), 424A, 424A(1), 427(6), 474(1), 476, 476(1), 481, 481(1)(a), 481(1)(b), 483A, Pt.8,
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411
Attorney‑General for the State of New South Wales v Quin (1990) 170 CLR 1
Brewer v Brewer (1953) 88 CLR 1
Carlos v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 456
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration & Multicultural Affairs v Villa (2001) 115 FCR 16
Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 180 ALR 1
Minister for Immigration & Multicultural & Indigenous Affairs v WAAG (with MIMIA v SBAN) [2002] FCAFC 431

Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re JRL; Ex parte CJL (1986) 161 CLR 342

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Repatriation Commission v Nation (1995) 57 FCR 25
Rogers v The Queen (1994) 181 CLR 251
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Vakauta v Kelly (1989) 167 CLR 568
WAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 655
WAAG v Minister for Immigration [2002] FMCA 191

First Applicant: NAOX

Second Applicant: SZFSG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG364 of 2005

Judgment of: Smith FM

Hearing date: 9 February 2006

Date of Last Submission: 23 March 2006

Delivered at: Sydney

Delivered on: 13 April 2006

REPRESENTATION

Counsel for the Applicants: Mr B Levet

Solicitors for the Applicants: WR Ghioni, Solicitors

Counsel for the First Respondent: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG364 of 2005

NAOX

First Applicant

SZFSG

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 9 February 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 December 2004 and handed down on 14 January 2005.  The Tribunal affirmed decisions of a delegate made on 23 April 1999 which refused to grant a protection visa to each of the applicants.  The Tribunal’s decision followed an earlier decision by a different member, which was set aside by order of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395/2002”). 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicants’ claims should be believed, nor whether they qualify for refugee visas.

4. The long history of the matter commenced with protection visa applications being lodged by a migration agent in 1999 on behalf of each of the applicants.  Each application was accompanied by a statement which claimed a history of harassment of each applicant in his country of nationality, Bangladesh, as a result of his membership of a particular social group of homosexuals.  Each of them claimed to have discovered homosexual inclinations while at school, and to have been rejected and harmed by members of his family and others as a result of being discovered in homosexual relationships.  They claimed to have formed a committed relationship with each other, and to have commenced to “live together” “as a couple” in 1994.  They travelled together to Australia in August 1998 on a short visit.  When they returned home, they “found the situation was dangerous”, they both were sacked from their employments, and “the local fundamentalists issued a fatua against us to killing us by throwing stones”.  They then obtained further visas to visit Australia. 

5. They arrived on 19 February 1999, and lodged their applications for protection visas on 4 March 1999.  Both applications were refused by a delegate on 23 April 1999, and since that time their matters have travelled in tandem through the Tribunal and in the courts. 

The first Tribunal’s decision 

1. Their applications for review by the Tribunal were filed on 17 May 1999, and they further elaborated their claims at a hearing.  On 22 February 2001, the Tribunal, then constituted by Ms Rosyln Smidt, handed down a single decision which affirmed the two decisions of the delegate.  In her statement of reasons, she first considered general information about “the situation of homosexual men in Bangladesh”.  She concluded: 

   From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh.  To attempt to do so would mean to face problems ranging from being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.  However, Bangladeshi men can have homosexual affairs or relationships, provided they are discreet.  Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it.  It is also clear that the mere fact that two young men held hands or hugged in the street would not cause them to be seen as homosexuals, and that being caught engaging in sexual activity on one occasion would be most unlikely to cause a young single man to be labelled  a homosexual.  (emphasis added) 

2. Ms Smidt then summarised the evidence of each of the applicants in their statements and oral evidence.  Under the heading “Findings and Reasons for Decision”, she commenced with a factual finding: 

   I accept that [NAOX] and [SZFSG] are homosexuals and that they have lived together since 1994.  I also accept that they have been ostracised by their families, [SZFSG] since the 1980s and [NAOX] since 1994.  However, apart from ignoring them, their families have done nothing else to harm them.  And despite being ostracised by their families, they have been able to obtain and keep good jobs, find accommodation and lead relatively normal lives.  In these circumstances, while being ostracised by their families is no doubt very distressing for both men, it does not constitute persecution under the Convention. 

3. Beyond the favourable findings in the first two sentences of this paragraph, Ms Smidt disbelieved most of the applicants’ claims.  She said: “I found much of the evidence given by both men regarding the problems which they faced during their time together to be lacking in credibility”.  She then explained significant adverse findings, including:  

   i)“I am extremely sceptical of the claim that [SZFSG] was dismissed from his job in 1980 because he had raped a number of young men from his office”. 

   ii)“I do not believe that [SZFSG] was unable to find work between 1980 and 1991 because of his homosexuality”. 

   iii)“I do not believe that [SZFSG] was sentenced to 300 lashes with a whip with a small stone attached and whipped until he was unconscious in 1985”. 

   iv)“Given [SZFSG]’s tendency to exaggerate or concoct claims, I am not satisfied that he and his partner were attacked in their home in 1990”. 

   v)“I do not accept [NAOX]’s claim that people in [their town] knew that he and [SZFSG] were homosexuals because of the manner in which he dressed, nor that they were taunted and harassed in their home by these people, nor that he complained to the police”. 

   vi)“I do not accept [SZFSG]’s claim that he and [NAOX] were seen having sex in their home because they forgot to shut the door”. 

   vii)“I do not believe that [NAOX] and [SZFSG] were attacked on the street in July 1998 and forced to leave their home”. 

   viii)“As I do not believe that [NAOX] and [SZFSG] fled to Dhaka and then to Australia in 1998 because it had been discovered that they were a homosexual couple and they had been attacked and threatened, it follows that I do not believe that the problems which caused them to leave the country worsened during the time they were out of the country”. 

4. Ms Smidt concluded: 

   After considering all of the evidence, I accept that [NAOX] and [SZFSG] are homosexuals and that they lived together in Bangladesh from 1994 until their departure from the country in early 1999.  I also accept that they were shunned by their families because of their homosexuality.  They may also have been the subject of gossip and perhaps even some taunts from neighbours who suspected they were homosexuals.  However, I do not believe that this constitutes serious harm amounting to persecution under the definition.  [NAOX] and [SZFSG] did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return.  As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it.  [NAOX] and [SZFSG] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families.  They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.  (emphasis added) 

The High Court’s orders 

1. The applicants commenced proceedings for judicial review under the special jurisdiction given to the Federal Court under then s.476(1) of the Migration Act (see Appellant S395/2002 at [22]). This jurisdiction was modelled upon the provisions of s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”), but with narrower grounds of review. The Court’s powers were modelled on s.16 of the AD(JR) Act, and relevantly were:

   481Powers of the Federal Court 

   (1)On an application for review of a judicially‑reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: 

   (a)an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

   (b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

   (c)an order declaring the rights of the parties in respect of any matter to which the decision relates;

   (d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties. 

2. The applicants were unsuccessful at first instance and on appeal in the Federal Court, but were given special leave to appeal to the High Court.  On the appeal, the High Court was divided on whether any error was shown in the Tribunal’s reasons, in particular by its finding that “Bangladeshi men can have homosexual affairs or relationships, provided they are discrete” and its reference to the applicants having “clearly conducted themselves in a discrete manner”. 

3. In the majority, McHugh and Kirby JJ held that it would be “an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly”.  They concluded that the Tribunal had made this error, and “failed to consider the real question that it had to decide” because it did not consider whether the applicants had “acted discreetly in the past because they feared they would suffer harm unless they did” (see Appellant S395/2002 at [39] and [51]).  They held that “the Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct “particular social group”” for the purpose of the Convention, because it had “effectively broken the genus of “homosexual males in Bangladesh” into two groups – discrete and non‑discreet homosexual males in Bangladesh” and this “diverted the Tribunal from examining and answering the factual questions that were central to the persecution issues” (see [55]‑[60]). 

4. Their reasons concluded: 

   60By declaring that there was no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal effectively broke the genus of ‘‘homosexual males in Bangladesh’’ into two groups – discreet and non‑discreet homosexual men in Bangladesh.  By doing so, the Tribunal fell into jurisdictional error that renders its decision of no force or effect. 

   61The appeal should be allowed.  The order of the Full Court of the Federal Court in each case should be set aside.  In place thereof, this Court should order that the appeal to the Full Court be allowed and the orders of Lindgren J be set aside.  In place thereof, it should be ordered that the application be granted, the decision of the Tribunal be set aside and the matter remitted to the Tribunal to re‑determine its review of the decision of the Minister’s delegate.  The Minister should pay the costs of the appeal to this Court, the proceedings before Lindgren J and the appeal to the Full Court of the Federal Court. 

5. Gummow and Hayne JJ said that the Tribunal’s error was that it “did not ask why the appellants would live “discreetly”” and whether this was “because that was the way in which they would hope to avoid persecution” (see Appellant S395/2002 at [88]).  They also agreed that it erred “by dividing the genus of homosexual males in Bangladesh into two groups”, and said that this was a “false dichotomy”. 

6. Their reasons concluded: 

   91The Full Court of the Federal Court should in each case have allowed the appellant’s appeal with costs, both in that Court and in the court below, set aside the orders of the primary judge and, in their place, made orders setting aside the decision of the Tribunal and remitting the appellant’s application for review of the decision of the Minister’s delegate to the Tribunal for redetermination.  In each case the appeal to this Court should be allowed with costs, the orders of the Full Court set aside and, in their place, there be orders in the terms we have set out. 

7. The order of the High Court, as taken out, reflected the reasons of the two majority judgments.  It allowed the appeal, and substituted for the orders of the Federal Court an order which provided: 

   (i)the application be granted with costs; 

   (ii)the decision of the Refugee Review Tribunal dated 5 February 2001 be set aside; and

   (iii)the matter be remitted to the Tribunal for re‑determination. 

8. As I shall explain below, the effect of this order was a matter of controversy before the reconstituted Tribunal and in argument before me. At this stage, it is enough to note that the order was framed in terms of s.481(1)(a) and (b) of the Migration Act which I have set out above, and that the Court has not exercised its discretion to include “such directions as the Court thinks fit” within its remittal order or in the body of the majority reasons. 

The second Tribunal’s procedures 

1. After the remitter, the Tribunal was reconstituted by Mr Luke Hardy. Although the Principal Member’s direction which did this is not in evidence, the applicants’ counsel accepted that it could be assumed to have been issued pursuant to s.422(1). Section 422(2) provided:

   (2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.  

2. On 14 July 2004, the Tribunal sent to each applicant its normal letter informing him that “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”.  The letters invited the applicants to attend a hearing appointed for 23 August 2004.  They were subsequently told that this date was moved to 16 September 2004, due to “circumstances beyond our control”. 

3. In response, the applicants’ solicitor lodged “Response to Hearing Invitation” forms, indicating a desire to come to the hearing and an intention to be accompanied by their solicitor and a barrister, Mr Bruce Levet.  No warning was given to the Tribunal of any legal submission which would be made concerning the future course of the matter. 

4. A transcript of the hearing on 16 September 2004 is in evidence before me.  The applicants argue that it reveals actual bias against them by Mr Hardy, or might give rise to a reasonable apprehension of bias in a fair‑minded lay observer. 

5. Mr Hardy opened the hearing by referring to the remittal order.  He said: 

   This means that the Tribunal decision that was made in your case in the past does not exist.  This evidence that you have given to all decision makers up until now is before us, legitimately before me.  But the Tribunal is making a fresh and new determination of your case.  That means that this Tribunal is make [sic] a de novo determination of your case.  So along the way I may be asking you questions about your past and asking you for information that you may feel have you given [sic] the past already.  Okay.  With that I have to examine this case as I see fit, to the best of my capacity. 

6. After some further explanation of this proposed procedure, Mr Levet was invited to speak.  He made a lengthy submission, with reference to legal authorities, in support of the proposition that it was not open to the Tribunal to reconsider whether the applicants “are in a homosexual relationship” nor whether “homosexuals face discrimination or harm” in Bangladesh.  He argued that these facts were “immutable matters that stand and which were not disturbed in the court above”. 

1. Mr Hardy said: “my understanding of my duty at this point is quite different from what you presented to me for the first time in the last half hour”, and: 

   I think we should adjourn the matter.  I will consider that argument.  I will share the job of considering that argument with other minds in the Tribunal.  That is to say I will take legal advice from our legal section on that matter. 

2. Mr Levet then said: “there are two further matters I would ask you very briefly to consider”, and made two submissions.  The first was that, even if the Tribunal was not bound by “an issue estoppel on those two issues”, only two issues “are relevant for your consideration”.  It is unclear to me from the transcript as to what those issues were. 

3. His second submission was: “you may care to consider the question of whether a Tribunal Member, having embarked as you have embarked on a hearing, is entitled to either seek the advice of other Tribunal Members or alternatively seek the advice of a legal section”. 

4. After allowing Mr Levet to develop this submission, the transcript shows: 

   Mr Hardy:Submission noted.  I am still going to adjourn this matter, okay.  I shall come back, I shall conduct myself properly, bearing in mind your suggestions.  I shall, to the extent possible, conduct myself in this matter as I normally would be entitled to do as a Tribunal Member hearing a matter before the Tribunal.  I will consider your submission.  I note that there is no legal barrier to the Tribunal consulting its legal section for – I am aware of no legal barrier at this stage apart from the ones that you have raised and therefore only indirectly, of any barrier to the Tribunal consulting its legal unit for references of the kind that you have just volunteered to me or … completely. 

   I am going to adjourn this matter and I shall return.  Whether or not I actually consult anybody on this is another matter but my understanding is that I am entitled to.  But it was perfectly right of me to disclose to you that I would avail myself of the wisdom of our legal unit on this technical legal matter, which you regard as so important.  Now another matter of housekeeping, if we are all going to come back in this number, let alone any greater number, we might need another hearing room because I don’t think the air conditioning in this room is sufficient to deal with all of us being here on a warming spring day.  The air feels quite still in here and if we are going to have a long hearing we will probably need the air conditioning. 

   Mr Levet:Sir, would you wish to avail yourself of the offer, I just wanted to clarify that but I would not communicate with you for the purpose of faxing you a copy of the decision in the matter of Gunson without your authority that I do so. 

   Mr Hardy:You can send to me any material that you wish, that you think is relevant to this case for the conduct of this case. 

   Mr Levet:Thank you, sir.  I appreciate that.  I will avail myself. 

   Mr Hardy:That’s fine.  I – it would be wrong of me to suggest otherwise.  So there may be another meeting for us all, there may be a hearing for us in the future.  It may be me conducting the hearing because at this stage the matter is constituted to me.  What we will do is we will use the language common in the situation and adjourn this matter for another date to be determined.  I will get back to you on how I see we should proceed with this. 

   Mr Levet:Thank you for your considerations. 

   Mr Hardy:Absolutely.  The thing is if you are absolutely right and if my role in this is limited to certain points, it could involve a lot less work for everybody.  It might or it might not but it might.  So in terms of expense and exhaustion, frustration and emotion for all of the people concerned, that could be a good way to proceed if it is the right way to proceed.  So my mind is very open to the points you have brought to my attention.  But I have to determine whether it is the right way to proceed.  My understand[ing] is at this stage, particularly given the suddenness of the submission, is that there was another way for me to proceed.  Okay.  So watch this space I guess.  The officer will adjourn the matter. 

   Hearing Officer:     The Member has left the room.  Hearing adjourned at quarter to 1, to commence on a different date.  I am stopping the recording. 

5. Following the hearing, the Tribunal wrote to the applicants’ solicitors requesting that “the legal arguments presented orally today be summarised and submitted in writing to ensure that the Tribunal has the whole meaning of those arguments and to ensure that it has a correct record of the cases (and case names) cited in support of them”. 

6. A written submission signed by Mr Levet was then lodged on 27 September 2004, which submitted that the Tribunal “is now estopped from denying the existence” of favourable findings of fact made by Ms Smidt, and that “a finding that the Applicants are persons to whom Australia has protection obligations necessarily follows the findings of fact that have already been made”. 

7. Under the heading “An Interlocutory Issue – Apprehension of Bias”, it was also submitted that “it is not open to the Tribunal, once a matter has commenced before it, to inform itself of matters of either fact or law by discussions outside the Tribunal chamber in the absence of a party appearing before the Tribunal.  To do so would be to create a reasonable apprehension of bias”.  The submission did not argue that Mr Hardy should disqualify himself by reason of anything which had happened at the hearing on 16 September 2004, but concluded by repeating the claim that “the only determination logically possible is that the Applicants are entitled to a protection visa”. 

8. By letter dated 30 September 2004, the District Registrar of the Tribunal informed each of the applicants:  

   The presiding Member does not accept the arguments presented.  The presiding Member’s reasons will be shown in the decision in this matter in due course.  The Tribunal will commence hearing evidence from the applicant on 28 October 2004. 

   The presiding Member wishes to advise that any further legal argument relevant to the applicant’s claims, or intended for consideration in relation to the conduct of the review of the application, should be submitted in writing through the applicant’s registered migration agent.  The Tribunal will not delay the commencement of evidence‑taking on 28 October 2004 to receive oral legal argument at the hearing.  (emphasis in original) 

9. On 11 October 2004, the Tribunal received a letter from the applicants’ solicitors requesting that another hearing date be appointed, because Mr Levet was available only on a few dates in November and then “at any time from the 2^nd December onwards”. 

10. The District Registrar of the Tribunal responded on 12 October 2004 by confirming the hearing date.  The letter said: 

    The presiding Member thanks Mr Bharati for his FAX message of 11 October 2004, and has asked me to pass on to you the following response: 

    The Hearing of these two cases will commence as advised on 28 October 2004.  The Tribunal is following appropriate notification procedure in setting the Hearing for that date.  If Mr Bharati, who is the Applicants’ registered migration agent, is available on that date, he will be most welcome to attend.  If not, the Tribunal would make hearing tapes available to Mr Bharati at the conclusion of the hearing, as is normal practice, allowing time for further submissions.  In the event of a (non‑applicant) witness being unable to attend, the Tribunal could consider taking the (non‑applicant) witness’s evidence in writing.

    There is nothing arbitrary about the setting of the Hearing on 28 October 2004.  These matters have already been delayed once and the Tribunal has a duty to not to delay them further (s420[1] and [2] of the Act refer).  After the last adjournment, the Tribunal considered it fair to re‑start the full statutory notification period. 

    At the Hearing, the Tribunal will hear evidence from the Applicants.  It will consider hearing evidence from (non‑applicant) witnesses and proceed accordingly, as is the common practice in RRT Hearings.  Later in the Hearing, or prior to any adjournment, the Tribunal will call upon the registered migration agent, Mr Bharati, to suggest questions that the presiding Member might put to the Applicants, and the presiding Member will certainly consider asking such questions. 

    Mr Bharati is an experienced migration agent.  He needs to understand that the Tribunal operates on an inquisitorial model focusing on the taking of evidence from applicants.  The Tribunal must undertake a de novo review of the Applicants’ protection visa applications.  Mr Bharati appears to be letting himself get confused by procedural notions that apply to Courts of Law, and to adversarial ones at that.  There is no “counsel for the Minister” in this process.  The respective matters have now left the High Court and are before the Tribunal. 

    Any submissions relating to the substance of the review of these matters should be provided in writing. 

11. On 20 October 2004, the applicants’ solicitors noted that Mr Levet’s arguments had been rejected and requested that the Tribunal “advise whether it is the first, second, or both of these arguments that have been rejected.  Could you please also advise whether the Member has in fact consulted anybody on the legal issues raised”.  Their letter also requested that the Tribunal reconsider its decision not to grant an adjournment.  It said: “we request that you advise us within seven (7) days of the date hereof as to whether you are minded to grant an adjournment so that our clients still have time to seek an appropriate remedy elsewhere should this be appropriate”. 

12. The District Registrar of the Tribunal responded on 21 October 2004.  The letter said that the presiding Member “has decided to proceed with hearing the applicants’ evidence on 28 October”, and indicated that time would be allowed after the hearing for the applicants and their advisors to present submissions. 

13. Both applicants and their solicitor attended the hearing on 28 October 2004, and the whole proceeding was interpreted to the applicants.  A 34‑page transcript of the hearing is in evidence, but it is unnecessary for me to extract passages from it.  Counsel for the applicants did not take me to any particular parts of the transcript, nor to the Tribunal’s summary of the resumed hearing, in support of his submissions in relation to actual and apprehended bias.  I have read the transcript, and in my opinion Mr Hardy’s conduct of the hearing would not give rise to any apprehension that he was not genuinely seeking to investigate and receive, with an open mind, the applicants’ evidence on issues relevant to the review. 

14. Mr Hardy started by questioning SZFSG in the absence of NAOX.  SZFSG initially evaded or objected to questions concerning his reasons for his two visits to Australia.  After an adjournment to allow him to consult his solicitor, he agreed to answer questions.  In the course of his questioning, Mr Hardy gave him ample opportunities to respond to statements in his visitor visa applications that he was a married person.  Mr Hardy also put to SZFSG that his Australian brother had described SZFSG as “married” when making a 1998 spouse visa application, and had described the applicants as cousins when supporting their visitor applications.  Mr Hardy also put to SZFSG similar information conveyed to the Immigration Department in “two anonymous phone calls from somebody in the community”, which he said had been received by the Tribunal “yesterday afternoon”.  SZFSG denied that he was married and that he was related to NAOX. 

15. When NAOX was called into the hearing room, he refused to respond to most of Mr Hardy’s questions.  In response to the allegation that he also was described as “married” in his visitor visa applications, he said (in English): “never, never have I told I married”.  He said that it was not true that his mother was the first cousin of SZFSG. 

16. Mr Hardy told each applicant that they would have further opportunity to respond to the allegations in writing pursuant to a notice under s.424A(1) of the Migration Act. Such a notice was given in a letter dated 5 November 2004. It is unnecessary for me to examine this letter, since no issue is taken in the present application as to the Tribunal’s compliance with the requirements of s.424A.

17. The applicants’ solicitors responded to the Tribunal’s letter on 30 November 2004.  They maintained the applicants’ denials that they were related and that each of them was a married person.  It was suggested that “if indeed they declared their marital status as “married” (which they do not recall) what they would have meant by that is that they were not single and were in a relationship with each other”.  It was suggested that SZFSG’s brother might have asserted that they were cousins “in attempting to be “discreet” about the nature of their relationship”.  No evidence was presented in rebuttal, except two certificates from one local marriage registrar in Bangladesh certifying that there was no record “in my office and the neighboring offices” of a marriage in the name of either applicant.  The submission concluded by inviting the Tribunal to find that the applicants were homosexual and qualified for a protection visa. 

18. No clear submission was made in this post-hearing submission that Mr Hardy should disqualify himself from completing the review on the ground of actual or apprehended bias revealed in the proceedings up to that time.  However, Mr Hardy drew an accusation of bias from the second‑last paragraph of the solicitors’ letter.  He said in his reasons for decision: 

    The 30 November 2004 submission concludes with an accusation to the effect that the Tribunal has a closed mind in relation to the facts in the present case: 

    Our clients instruct us to ask what steps they have to undertake other than mere assertion to prove their homosexuality to the satisfaction of the Tribunal.  We think that were they a heterosexual couple claiming to be in a relationship you would hardly require the woman to undergo a medical examination to prove her lack of virginity; it follows that you should not require them to undertake a proctological examination to confirm that they have engaged in anal intercourse.  Similarly, you would not dream of requiring a heterosexual couple to perform the act of intercourse in front of a witness to adduce evidence of the relationship, yet the attitude you currently display towards our clients would seem to imply that this is the level of proof you might require of them. 

    For the record, the Tribunal has never suggested that the Applicants should undergo proctological examinations.  Such a requirement would have been unreasonable and invasive.  The Tribunal considered it important to give the Applicants an opportunity to present consistent, detailed evidence of relevance to their claims about their relationship, and in particular to give them an opportunity, which it did, to reconcile discrepancies in evidence given on previous occasions. 

    The Tribunal notes that the Applicants have not asked it to consider vacating the matter and leaving it to be re‑considered or re‑determined by another Tribunal.  In any event, the Tribunal sees no reason in the present case to follow such a course.  It will now proceed to give its reasons for its decision in this matter. 

The second Tribunal’s decision 

1. On 14 January 2005, the Tribunal handed down a 50‑page statement of reasons for affirming the decisions not to grant either applicant a protection visa.  Much of this recounted the history of the matter which I have summarised above. 

2. The Tribunal explained its reasons for rejecting Mr Levet’s arguments.  It said: “on a plain reading of [the High Court’s judgments in] S395, the High Court at no point gave orders to quarantine any “findings of fact” or “determinations of fact”, as Mr Levet called them, from de novo review”.  It referred to various authorities, including Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518, in support of its opinion that it was “bound to consider the matter afresh, on the basis of the material before it”. 

3. The Tribunal set out a long recitation of the evidence on the file and the course of the proceeding.  It made some observations on the evidence in the course of this.  It is unnecessary for me to quote any passages, since counsel for the applicants did not rely upon any particular statements in this part of the statement of reasons in support of the argued grounds of bias.  Nor is any point taken concerning the Tribunal’s reference to and reliance upon evidence given to the Tribunal when previously constituted.  It is clear that this involved listening to the tapes of the previous evidence, and raising afresh the previously identified areas of concern.  Thus, the Tribunal said in relation to one aspect: 

   The Tribunal notes that the previously‑constituted Tribunal drew attention to a number of discrepancies in the Applicants’ evidence about the 12 July 1998 incident and did not accept their evidence as consistent or credible.  For easy reference, examples of these apparent disparities have been marked by the presently‑constituted Tribunal in blue and yellow highlighter pen throughout the “CLAIMS AND EVIDENCE” sections of copies of RRT decisions N99/28381 and N99/28382 contained in the relevant RRT files.  They can also be heard on the tape recording of the previously‑constituted Tribunal’s hearing of their review applications, along with opportunities provided to them by the previously‑constituted Tribunal to reconcile those factual differences.  The presently‑constituted Tribunal, having listened to the electronic record, is satisfied that the previously‑constituted Tribunal’s summary of these facts the evidence, and of the discussion with the Applicants of the disparities between them, is an accurate reporting of the oral evidence. 

   The Tribunal duly provided [SZFSG] with a fresh opportunity to address the evidence of that incident and reconcile any apparent disparities between what he and [NAOX] had previously said. 

4. The Tribunal explained its conclusions under the heading “Findings and Reasons”.  This reasoning is not the subject of a separate ground of review, and it is not necessary for me to examine it closely.  I note that the applicants’ counsel withdrew a ground which alleged “the Tribunal Member’s finding that the Applicants were not homosexuals was unreasonable as that term is defined in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223”. 

5. In summary, the Tribunal reasoned: 

   i)“Having considered the evidence of the Applicants, and finding it to be inconsistent, the Tribunal does not accept as factual the claimed events of 12 July 1998” (i.e. that the applicants had been the subjects of an homophobic attack when going for an evening walk). 

   ii)“The Tribunal does not accept that there has been a fatwa issued against them”. 

   iii)The claims “about being prevented from keeping their jobs upon return to Bangladesh in September 1998” were also “undermined by inconsistency”. 

   iv)“Although the Tribunal cannot accept these key claims about detection of the Applicants’ claimed relationship in Bangladesh and consequent animosity against them in that country, it has considered the possibility that the Applicants’ core claim about having been in a homosexual relationship may be true.  Were the Tribunal to accept that the claimed relationship was (and is) real, but remained undetected, then the question would arise as to whether it has remained undetected because the Applicants have been discreet owing to a well‑founded fear of persecution.  However, in its review of the facts in the present matters, the Tribunal has found many items of evidence that undermine the view that the Applicants’ claimed relationship is or was ever genuine”. 

   v)“The Tribunal finds that the Applicants are close relatives who are, or have been married to women.  The Tribunal’s finding is based on evidence provided by them and by [SZFSG’s] brother.  The Tribunal does not rely on the evidence of the anonymous caller to DIMIA in relation to these or, in fact, any adverse factors in the Applicants’ respective cases.  However, the Tribunal is also of the view that the anonymous caller’s evidence does not help their cases.  The Tribunal considers that it is important to make this clear because the Applicants have made unsupported claims about the caller having acted on behalf of either a homophobic section of the Bangladeshi community or DIMIA or both.  The Tribunal does not accept those suggestions.  For the reasons stated, the Applicants’ being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together.  The fact that they are married knocks out their claims about their aversion to heterosexual marriage”. 

   vi)The Tribunal also noted the applicants’ sur place claims “that they have been exposed to the possibility of persecution in Bangladesh, for reasons of perceived homosexuality, by published references to their appeals in the courts by those courts, by the print media in Australia and by Internet reports worldwide”.  It said that, taking into account “in particular, the Applicant’s inability to provide reliable evidence of their sexuality being regarded as an issue of notoriety back in Bangladesh, the Tribunal finds that the sur place claims of the Applicants lack merit”. 

   vii)It concluded generally: “The Tribunal is not satisfied that the Applicants face a real chance of Convention‑related persecution in Bangladesh.  Their claimed fear of such persecution is not well‑founded.  They are not refugees”. 

Grounds 1 and 2 – Bias  

1. These grounds allege “that the Tribunal Member was biased against the Applicants”, or alternatively, “that the Tribunal Member might reasonably be apprehended as being biased against the Applicants”.  The following particulars of these contentions were maintained in the submissions of the applicants’ counsel: 

   Particulars 

   a.In circumstances where an issue before  the Tribunal was whether or not the Applicants were homosexuals, the Tribunal member failed to disclose to the Applicants that he had been criticised by appellate courts in the matter of WAAG v MIMIA for bias against homosexuals; 

   b.The conduct of the Tribunal Member in conducting the hearing was such that, when viewed as a whole, it supported the inference that he was biased against the Applicants.  Such conduct included:- 

   (i)The finding by the Tribunal Member that the Applicants were not homosexuals, despite their sworn assertion that they were and there being no admissible evidence to the contrary;

   (ii)The appointment by the Tribunal Member of the date of the second day of hearing before him without first enquiring as to the availability of counsel for the Applicants who was then part heard before him, coupled with the refusal of the Tribunal Member to vacate such hearing date upon being informed of the non availability on that day of counsel for the Applicants;

   (iii)The coercion of the Tribunal Member in the absence of their counsel into giving sworn evidence before him in circumstances where they objected to giving evidence and where their counsel had previously informed him that it was not intended that they give evidence;

   (iv)Having regard to irrelevant information, namely anonymous telephone call to the Respondent’s department alleging that the Applicants were not homosexual;

   (v)Failing to advise the Applicants when requested to do so in writing whether he had sought advice from other persons in the Respondent’s department after he had commenced hearing the matter as to how to deal with the matter;

   (vi)Failing to consider all relevant issues, including the issue of whether homosexuals could live openly in Bangladesh.  

The tests for bias 

1. There was no dispute between counsel as to the relevant tests.  In relation to actual bias, Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [35] and [72] described as “orthodox” the test formulated at first instance by French J.  French J had said that actual bias “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 her which are relevant to the decision to be made”.  Their Honours added: 

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.  (see also Hayne J in Jia at [179]‑[187])

2. In relation to apprehended bias, Gleeson CJ, Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 (“Re H”): 

   [27]The test for apprehended bias in relation to curial proceedings is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.  That formulation owes much to the fact that court proceedings are held in public.  There is some incongruity in formulating a test in terms of “a fair‑minded lay observer” when, as is the case with the tribunal, proceedings are held in private. 

   [28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done.  To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.  (citations omitted) 

The significance of WAAG 

1. In WAAG v Minister for Immigration [2002] FMCA 191 (“WAAG”), an applicant for a protection visa claimed a history of persecution in Iran for homosexual behaviour.  The Tribunal gave a decision on 19 September 2001 which rejected the claim, having formed the conclusion that: “taken as a whole, the evidence it has heard from the Applicant does not leave it remotely confident in concluding that he is homosexual”.  Counsel for the present applicants claimed that Mr Hardy had constituted the Tribunal in WAAG, and this was not disputed by counsel for the Minister.  He argued that Mr Hardy should have disqualified himself from deciding the present case, or should at least have disclosed to the applicants a possible basis for disqualification, arising from adverse findings concerning his conduct made by Raphael FM in WAAG: 

   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 v MIMIA [2002] FCA 668 quoted at [15] above.

2. I have difficulty accepting that these findings concerning statements made by a Tribunal member when conducting a hearing in one case three years earlier are capable of establishing a general bias, either actual or apprehended, disqualifying the member from deciding all subsequent applications involving claims of homosexuality.  However, a more significant difficulty facing the applicants’ reliance on the conclusions of Raphael FM in WAAG, is that they were disapproved on appeal in the Full Court of the Federal Court. 

3. The Minister’s appeal was determined in company with three other cases.  A single judgment was given, published on 18 December 2002 as Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431. In relation to WAAG, Heerey and Kiefel JJ (with whom Moore J agreed at [76]) said:

   65The Magistrate’s conclusion that the RRT adopted a “completely closed approach” cannot be sustained.  Where a claim for refugee status is based on grounds such as religion, membership of a particular social group or political opinion it is understandable that the RRT might test the veracity of the claim by reference to knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess.  As a matter of common sense, this is a perfectly legitimate fact‑finding technique for an administrative decision‑maker.  To take an example removed from the facts of the present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test this assertion by enquiring as to the applicant’s knowledge of matters of Catholic doctrine, ritual, traditional belief and the like.  It may be that the Tribunal member’s understanding of such matters is in fact inaccurate.  Or at the other extreme the Tribunal member may be correct but may assume a detailed knowledge that it would not be reasonable to expect of the average Catholic.  These errors however would at worst provide grounds for criticism of the fact‑finding process.  They would not in themselves be suggestive of bad faith or the imposition of some illegitimate “template”. 

   66As to the “nature and tone of the questioning” by the RRT, we see nothing beyond matters of personal style, which are a matter for the individual member.  The consideration the RRT gave to the respondent’s claim was genuine and thorough.  In particular, there is nothing to suggest that the RRT knew or suspected that the applicant would not be able to answer the questions now complained of.  The respondent was not being trapped or set up. 

4. Their Honours’ order dismissing the original application for judicial review was set aside by consent in the High Court of Australia on 1 September 2005 (see WAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCATrans 655). I deduce that a significant reason for this was the new interpretation of s.474(1) of the Migration Act given by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, subsequent to the Full Court decision. However, I cannot deduce from the making of the consent order support for a finding of general bias against homosexual claims on the part of Mr Hardy. Further, since the High Court order was made subsequent to the present decision of Mr Hardy, it cannot be invoked in support of an argument that he failed to disclose a matter which might have prompted the applicants to request him to disqualify himself. At the time of the present proceedings, his conduct of the review in WAAG had been upheld by the Full Court.  

5. In my opinion, reference to any of the judgments or orders in WAAG does not assist the applicants to make out their contention that Mr Hardy has, or might appear to have, reviewed their particular claims with a closed mind.  

The finding that the applicants were not homosexuals  

1. There is a logical difficulty in drawing an inference or appearance of bias by way of prejudgment from the fact that the Tribunal made adverse findings in its final decision.  I accept below that it was the duty of the Tribunal to address the issue of whether the applicants’ claimed homosexual relationship was true, and I find no support for these grounds merely from its decision to address this issue.  Nor can I find support for the contentions of bias in the manner in which it reasoned.  Its adverse findings were explained with stated reasons which are rational, and have support in the material before the Tribunal. 

2. I accept that it may be possible to demonstrate from a Tribunal’s stated reasons for adverse conclusions that, in fact, it did not perform a bona fide examination of the evidence before it by reason of prejudgment arising from prejudice or other reason.  However, as Allsop J’s lengthy judgment in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264 (“NADH”) explains, to reach such a conclusion from reading a Tribunal’s statement of reasons requires identification of capricious or unexplained or surprising conclusions which show a failure to perform the statutory duty of review under s.414 and 415 of the Migration Act. I find it impossible to apply the reasoning of NADH to the statement of reasons of the present Tribunal. 

The refusal to adjourn the resumed hearing 

1. The applicants’ counsel referred to the exchange of correspondence in which the Tribunal declined to adjourn the hearing appointed for receiving the evidence of the applicants, which I have summarised above at [31]‑[35].  Counsel argued that “the decision was nothing if not arbitrary” and that “this is simply another example of bias (or which supports a reasonable apprehension of bias) on the part of the Tribunal”. 

2. In adversarial court proceedings, a refusal to accommodate the availability of counsel when adjourning a case may, in particular circumstances, so deprive a litigant of a reasonable opportunity to present his case as to amount to a denial of procedural fairness.  Depending upon the utterances of the judge and other surrounding circumstances, it may also give the appearance of prejudgment.  However, it is impossible to generalise as to when these inferences will be drawn, since it is a common occurrence that difficulties facing the court’s management of its lists or its perception of the requirements of the administration of justice will make it reasonable for it to be unable to accommodate counsel.  Were the present Tribunal’s refusal to accommodate Mr Levet’s availability to be viewed upon standards of procedure required of a court, I would not be satisfied that a denial of procedural fairness had occurred, and I would not draw an inference, even if a ground of procedural unfairness was established, that the refusal to adjourn might give rise to an apprehension of bias.  

3. However, the inappropriateness of viewing the procedures of the Tribunal through spectacles focused by curial processes has been emphasised in many judgments (e.g. Hayne J in Jia (supra) at [180]). The Tribunal pointed to valid distinctions in its correspondence in the present case. A significant reason diminishing the significance of counsel attending the taking of the applicants’ evidence was provided by s.427(6) of the Act:

   (6)A person appearing before the Tribunal to give evidence is not entitled: 

   (a)to be represented before the Tribunal by any other person; or

   (b)to examine or cross‑examine any other person appearing before the Tribunal to give evidence. 

4. In the present case, assessing the surrounding circumstances and the language of the correspondence concerning the adjournment request, I do not consider that it provides evidence of actual or ostensible bias.  In my opinion, there was not such a departure from the usual procedure of the Tribunal, nor disregard of the need to balance “fair and just” with the other considerations of “economical, informal and quick” referred to in s.420(1), as to raise an apprehension of bias. It is clear that the Tribunal anticipated that in accordance with usual practice it would, itself, conduct the questioning of the applicants, and that their solicitor, who was also a registered migration agent, would be in attendance – as he was. The Tribunal had already provided ample opportunity for their counsel to present their opening legal submission. It promised further opportunities post‑hearing for submissions to be prepared with the assistance of counsel and the tapes of the hearing. The applicants retained their full opportunity to take Mr Levet’s advice before and after the hearing. In these circumstances, it was left unclear to me how it is suggested that Mr Levet’s presence at the hearing was of great importance, and how it is suggested that the applicants were materially prejudiced by his absence.

5. I do not accept that the Tribunal’s conduct surrounding the refusal to reschedule the hearing, whether considered alone, or in combination with the whole circumstances of the proceeding, might cause an apprehension that the Tribunal had closed its mind to the merits of the applicants’ claims.  I am not persuaded that, at this point in the procedure, it had actually closed its mind. 

“Coercion” of the applicants to give evidence 

1. As I have indicated above, both the applicants were initially reluctant to answer any questions put to them by Mr Hardy.  NAOX largely maintained this attitude, and can hardly be said to have been “coerced”.  SZFSG said: “I will try to answer your questions.  Some questions”, after taking an offer of an adjournment in which he received advice from his solicitor.  No objection was taken to the Tribunal’s procedures or questioning at the time by the applicants’ solicitor, nor in the applicants’ post‑hearing submission. 

2. I am entirely unpersuaded that this aspect of the hearing could suggest bias by way of prejudgment on the part of Mr Hardy.  I reject the contention that the applicants were “coerced” at the hearing.  As counsel for the Minister submitted: “it is difficult to understand how it could appear that the Tribunal was not open to persuasion because it wanted to hear from the applicants as to their claims.  The appearance is to the contrary”.  In particular, it is apparent from the transcript that Mr Hardy was very concerned to put to the applicants the adverse information concerning their visitor visa documentation and the anonymous “dob‑in”, and to hear their responses.  I do not consider that his efforts to draw their attention to the wisdom of answering his questions reflected adversely upon his impartiality according to the tests identified in Jia and Re H. 

The anonymous telephone call to DIMIA  

1. As I have narrated above, shortly before the resumed hearing the Tribunal received a record of “dob‑in” information anonymously given to the Department of Immigration. The information was fully put to the applicants during the hearing and in a s.424A notice, and the Tribunal disclaimed reliance upon it when drawing its key conclusion that they were not partners in a homosexual relationship. In these circumstances, it is difficult to see how the Tribunal’s reference to this information reveals evidence of bias.

2. As I understood the submissions of counsel for the applicants, an “indicia of bias” was shown because the Tribunal did not “wholly and emphatically reject the anonymous accusations”, but gave them some life in two ways.  First, it made a gratuitous comment that “the anonymous caller’s evidence does not help their cases”.  Secondly, when addressing the sur place claims, it also referred to the information, by saying: 

   The only evidence of the Applicants’ identities being linked to the present cases appears in the form of the DIMIA record of the remarks of the anonymous caller.  The anonymous caller may be part of a gossip ring that reaches back to Bangladesh.  However, the evidence of the anonymous caller knowing who the Applicants are does not support the position that the Applicants are construed to be homosexuals by other Muslims or by the wider Bangladeshi community in Sydney or anywhere in the world.  In fact, the anonymous caller’s evident assumption that the Applicants are not homosexual. 

3. Counsel for the applicants submitted that these statements were inconsistent and therefore irrational.  However, I can see no inconsistency nor irrationality in the Tribunal’s references to the anonymous information. 

4. Counsel also argued that Mr Hardy should, before even putting the information to the applicants, have told them that he would be disregarding the information.  However, with respect, that submission reveals the weakness of the broader submission.  In my opinion, it was plainly proper for the Tribunal to give consideration to the “dob‑in” information, and to hear the applicants’ responses to it before deciding what weight should be given to it. 

1. In my opinion, the Tribunal’s ultimate reference to the anonymous information not only reveals no procedural irregularity, but tends to confirm the openness of the Tribunal to weigh up all the evidence before arriving at its conclusions on the review.  The weight to be given to anonymous information of the present type might require careful consideration, and the procedures to be followed to observe procedural fairness may be difficult (see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411).  However, the information was directly relevant to a central issue which the Tribunal was required to address, and in my opinion it was clearly open to the Tribunal to deal with it in the manner shown in its reasons.  I do not consider that this raises any suggestion of prejudgment or other bias on the part of Mr Hardy. 

Failing to advise whether legal advice was obtained 

1. I have above summarised the oral and written contentions made to the Tribunal in response to Mr Hardy’s suggestion that he might obtain advice from the Tribunal’s legal branch on the legal issues raised by Mr Levet.  It was contended that these exchanges, and in particular the Tribunal’s failure to respond to the request to reveal whether advice was ever obtained, was evidence of bias. 

2. I have difficulty with this submission.  Mr Hardy had, reasonably in my opinion, not anticipated Mr Levet’s submissions challenging the scope of the review to be conducted subsequent to the High Court’s remitter.  I do not consider that his response, including his suggestion that he might be assisted by advice from the Tribunal’s legal branch, reveals anything more than a real concern to understand Mr Levet’s submissions and reach a correct opinion on them.  I do not read his responses as showing him closing his mind on the legal issue, nor upon the factual issues which would arise if Mr Levet’s submissions were not accepted.  As I shall explain below, I consider that Mr Levet’s submissions were correctly rejected by the Tribunal upon clear High Court authority.  I cannot see how bias might be apprehended from the Tribunal’s handling of this issue. 

3. I reject the submission that, if the Tribunal in fact did obtain legal assistance from its legal branch to understand the legal issues, this would be an impropriety, reveal bias or satisfy tests of procedural unfairness.  The applicants’ counsel sought to bring such conduct within the principle applicable to courts that: “there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party”.  He relied upon the judgment of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL”) at 350‑351.

4. There are significant difficulties facing an attempt to translate this principle to the very different constitution and functioning of the present Tribunal, where there are no “parties” (c.f. Carlos v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 456 at [39]). Moreover, in my opinion, the Tribunal’s ability to consult sources of legal assistance within the Tribunal may be compared with an exception to the principle, which Mason J acknowledged in Re JRL at 351:

   This proscription does not, of course, debar a judge hearing a case from consulting with other judges of his court who have no interest in the matter or with court personnel whose function is to aid him in carrying out his judicial responsibilities.  

5. There is no evidence before me that, indeed, the Tribunal did ultimately receive legal advice from any source.  There is certainly no evidence that any advice it obtained came from a source which was not a proper source of advice within the Tribunal.  The applicants cannot, in my opinion, draw adverse inference from the Tribunal’s declining to submit to interrogation.  I do not consider that any particular of actual or apprehended bias is made out. 

Failure to consider the issue identified by the High Court 

1. I have difficulty to see how evidence of bias can be discerned in the Tribunal’s failure to decide whether, if the applicants were homosexual, they could live openly in Bangladesh.  If the Tribunal was obliged to address this issue, and failed to do so, then jurisdictional error might be found upon direct application of well‑known principles.  I cannot see how that argument would be assisted by characterising the error under principles of bias. 

2. However, as I shall explain below, the Tribunal was correct in thinking that it was required to address de novo whether the applicants’ claim of a homosexual relationship was true.  Its adverse finding on this issue then rendered legally irrelevant the question which, upon the findings of the previous Tribunal member, the High Court majority justices thought she had failed to address.  The premise of this particular of bias is therefore lacking. 

Conclusion on bias 

1. For the above reasons, I do not accept any of the particulars of actual or apprehended bias argued by counsel for the applicants.  It is therefore unnecessary for me to consider whether, if some ground of apprehended bias was raised by something said or done by the Tribunal, the applicants should be found to have waived their right so to contend, by reason of waiver or acquiescence shown by their failure clearly to seek disqualification before discovering the outcome of their case (see Vakauta v Kelly (1989) 167 CLR 568).

Ground 3 – the effect of the High Court order 

1. This ground is framed in the amended application: 

   That the Tribunal Member erred in holding that the Applicants were not homosexuals in circumstances where he was estopped from so holding, or in the alternative in circumstances where he was obliged not to make such a holding as it would have been an abuse of process of the High Court of Australia or the other federal courts where this matter was litigated. 

2. In relation to an estoppel, counsel for the applicant argued that this arose from the finding of the Tribunal as first constituted, because it had not been challenged in the High Court and had formed “the groundwork” of the opinions of the majority justices which explained the High Court’s order of remittal.  In support, he cited passages from authorities which refer to the underlying concerns for the administration of justice which explain principles of res judicata, issue estoppel and Anshun estoppel (Brewer v Brewer (1953) 88 CLR 1 at 14‑15, Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508‑509). He did not cite any authority which has applied any of these principles in the context of a reconsideration conducted by an administrative tribunal pursuant to an order such as was made by the High Court in the present matter.

3. My short opinion is that counsel’s submissions proceeded upon a fundamental misconception as to the nature of judicial review of an administrative decision under a jurisdiction such as was being exercised by the High Court. The proceedings in the High Court did not decide controversies of fact going to the merits of the administrative decision and the factual findings upon which it was based. It was not open to the Minister to challenge the factual correctness of the first Tribunal’s finding that the applicants were homosexual, and that finding provided no more than the context for the controversy which was litigated in the proceeding brought under former s.476. There is, therefore, no analogy between the first Tribunal’s favourable finding which the applicants sought to rely upon, and a judicial determination of a fact in issue as a necessary part of a judgment.

4. I do not consider that I need to further explore the authorities on estoppel cited by counsel, since the effect of an unqualified order under former s.481 and comparable powers on judicial review has, in my opinion, been settled by authority binding upon me, which I discuss below.

5. I consider that it is clear from the form of the present High Court order, and the conclusions of the majority judgments which I have extracted above at [12]‑[16], that the order was unqualified, in particular, by disclosing no intention to confine the matter which was remitted to the Tribunal nor to limit the factual issues which it was required to consider. 

6. The Federal Court has a power of remittal upon appeal from the Administrative Appeals Tribunal which includes provisions similar to the power in s.481(1)(b), allowing the reference of a matter back to the decision‑maker to be accompanied by “such directions as the Court thinks fit”.  There is at least one case where an unqualified order of remitter has been found to contain an implicit limitation on the issues remitted, arising from the context of the order (see Repatriation Commission v Nation (1995) 57 FCR 25 (“Repatriation Commission v Nation”)).  However, it has been usual to regard an unqualified remitter as not intended to carry any qualification (see Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 (“Morales”) at 387). In more recent cases, the power to confine the ambit of a remitted matter has been acknowledged, and the relevant limitation appears in the order where this course is considered appropriate (c.f. Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 per Gyles J at [94]‑[95], Hely J agreeing at [86], Hill J in dissent at [69]‑[80]). A similar position was taken by Tamberlin J in relation to s.481 of the Migration Act in Minister for Immigration & Multicultural Affairs v Villa (2001) 115 FCR 16.

7. These authorities are consistent with the reasons given by the High Court in Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518, which discussed the powers of remittal given by s.481 of the Migration Act. In that case, the Federal Court had not qualified an order of remitter in relation to the issues to be addressed by the Refugee Review Tribunal, but had directed its order of remitter to the Tribunal “as previously constituted”.  Gleeson CJ considered at [15] that this was done to protect Mr Wang “as far as possible from the contingency that, on the hearing of the remitted matter, the Tribunal might take a view of the facts less favourable” to him than had been taken by the current member. 

8. When joining the majority which allowed the appeal, the Chief Justice said at [18] that the requirement of fairness to Mr Wang “does not require protection against the risk that open‑minded judgment will result in a view of certain facts less favourable than that of an earlier decision‑maker whose decision has been set aside completely”.  He earlier, at [16], identified the legal status of the findings made in the decision which was set aside: 

   Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate’s decision.  The Tribunal’s decision upon that review is to be made on the basis of the facts as they appear in the course of that review.  To what extent the information before the Tribunal will differ from the information that was originally before Ms Boland is not known.  The findings made by Ms Boland will have no legal status in that further review.  Neither Ms Boland, if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them. 

9. Similar opinions as to the non‑binding nature of the findings made in the set‑aside decision were given by McHugh J at [45] and by Gummow and Hayne JJ at [67]‑[74].  Kirby J, in dissent, did not suggest that the earlier findings would be binding (see [134]). 

10. In Morales (supra) at 387‑388 the Full Court addressed, and rejected, a submission that a previous determination of the Administrative Appeals Tribunal (“the AAT”) created issue estoppels, even where the order of remittal was unqualified.  Their Honours cited authorities which had discussed whether principles of issue estoppel were ever applicable to decisions of the AAT, and said: 

    The short answer to this submission is that our conclusion that Sackville J’s order related to the whole matter, so that the first decision of the AAT was set aside in its entirety, means that nothing remained upon which, on any view, an issue estoppel could be founded. 

11. In my opinion, the same response should be made to the present ground of appeal.  It is undoubted that the majority judgments, which explain the present order of remitter, regarded the order as erasing any continuing legal effect of the decision which it set aside.  McHugh and Kirby JJ said in Appellant S395/2002 at [60]: “the Tribunal fell into jurisdictional error that renders its decision of no force or effect”, and expressed their intention that the remitter should require “the Tribunal to re‑determine its review of the decision of the Minister’s delegate”.  Gummow and Hayne JJ at [91] expressed their intentions in similarly unqualified terms. 

12. In my opinion, Mr Hardy, when constituting the Tribunal for the remitted proceeding, correctly held that he was not bound to follow or apply the previous favourable finding that the applicants were homosexual.  He was bound to conduct a de novo review of the applicants’ claims to qualify for protection visas, and I consider that he made no jurisdictional error by deciding to investigate and find against the applicants on whether, in fact, they were homosexual.  I note that it was not submitted either to the Tribunal or to me that, if Mr Hardy was not bound to accept the previous favourable finding, his decision to investigate the issue involved a miscarriage of discretion. 

13. I do not consider that the applicants’ alternative argument in support of this ground can survive my above conclusion as to the effect of the High Court order.  Counsel for the applicants, as I understood him, argued that even if the finding on homosexuality was not binding, there was an abuse of the procedures of the High Court when the second Tribunal allowed this issue to be opened up.  He cited a passage from the reasons of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 287, where his Honour referred to one example of abuse of process “where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings”. 

14. However, in my opinion, this passage in its own terms has no application to the present situation.  As the authorities cited above explain, the factual issue of whether the applicants were homosexual had not been “disposed of by earlier proceedings”.  Indeed, the very effect of the earlier judicial review proceedings, and of the unqualified order of remitter, was to leave that issue undecided on its merits by the administrative body with the duty to make that decision.  I therefore do not accept that Mr Hardy’s findings on this issue can be characterised as an abuse of the previous proceedings in the High Court.  

15. I raised with counsel for the applicants in the course of argument whether he was submitting that Mr Hardy’s opening up of the issue of homosexuality was, rather than an abuse of the judicial review proceeding in the High Court, an abuse of the Tribunal’s powers of review under s.414 and 415 of the Migration Act. He did not embrace that suggestion, and has not taken up an opportunity which I allowed him to develop it in supplementary written submissions.

16. On reflection, and unaided by further argument, I can see no basis for finding anything in the preceding history of the present matter which would require the exercise of the review power on the remitter to be confined under undeveloped doctrines of administrative estoppel (c.f. Mason CJ in Attorney‑General for the State of New South Wales v Quin (1990) 170 CLR 1 at 23, and Beaumont J in Repatriation Commission v Nation (supra) at 34E-G). If it is relevant for me to consider the fairness or justice of allowing Mr Hardy to revisit the issue of the applicants’ homosexuality, then I do not consider that this was unfair. As I have explained, it was an outcome which is consistent with well‑established principles of judicial review. Moreover, in view of the first Tribunal’s general disbelief of most of the applicants’ claims, they should have been fully aware that the unqualified rehearing they obtained from the High Court might involve a further assessment of the credibility of their claims, and that this might be performed by reference to any new material becoming available to the Tribunal. I am unable to identify any principle of administrative law which is offended by allowing this re‑examination to extend to their claimed homosexuality.

Other Grounds  

1. As I have indicated above, the applicants withdrew a ground of review that the Tribunal’s adverse factual conclusion was Wednesbury unreasonable. 

2. Their amended application contained grounds 4 and 5 as follows: 

   4.That the Tribunal Member was procedurally unfair to the extent of jurisdictional error in

   a.Having regard to irrelevant information, namely an    anonymous telephone call to the Respondent’s department alleging that the Applicants were not homosexual;

   b.The appointment by the Tribunal Member of the date of the second day of hearing before him without first enquiring as to the availability of counsel for the Applicants who was then part heard before him, coupled with the refusal of the Tribunal Member to vacate such hearing date upon being informed of the non availability on that day of counsel for the Applicants;

   c.Failing to advise the Applicants when requested to do so in writing whether he had sought advice from other persons in the Respondents department after he had commenced hearing the matter as to how to deal with the matter;

   d.Failing to consider all relevant issues, including the issue of whether homosexuals could live openly in Bangladesh;

   e.Excluding the First Applicant from the hearing room whilst he was taking evidence from the Second Applicant. 

   5.The Tribunal member erred in holding that he was able to take legal advice after he had commenced hearing the matter as to the matters which he had to decide. 

3. Counsel for the applicants did not develop any arguments in support of these grounds in either his written or oral submissions, but treated them as covered by his submissions in relation to bias which I have addressed above.  I therefore think it sufficient for me to give my opinions on them shortly: 

   ·I do not accept that the Tribunal had regard to irrelevant material obtained from the anonymous telephone call. As I have discussed above at [64]‑[68], no submission was made that the Tribunal failed to comply with a procedure required under s.424A(1), and I consider that the contents of the telephone call were sufficiently put to the applicants both at the hearing and in the s.424A letter. The Tribunal did not rely upon the call when reaching its finding that the applicants were not homosexuals. Its reference to the contents of the call when rejecting the sur place claim was open to it, and in my opinion did not involve a failure of procedural fairness. 

   ·I have examined above at [57]‑[63], the Tribunal’s refusal to adjourn the second day of hearing to meet counsel’s availability.  Assessing all its circumstances, I am not satisfied that this was procedurally unfair. 

   ·I can see no obligation of procedural fairness which obliged the Tribunal to respond to the applicants’ solicitor’s interrogation as to its obtaining of legal advice.  On the authorities I referred to above at [72], I do not consider that the applicants have established any procedural unfairness in relation to this aspect of the matter. 

   ·As I explained at [74]‑[75], it was unnecessary for the Tribunal to make findings on “whether homosexuals could live openly in Bangladesh”. 

   ·The transcript shows no objection being taken by either the applicants or their solicitor when Mr Hardy requested that NAOX leave the room while SZFSG was asked questions.  In the circumstances, I consider that this was an appropriate and not unfair procedure. 

   ·I have held above at [69]‑[73] that it was open to the Tribunal to obtain legal advice from its internal sources after receiving Mr Levet’s submissions, if that is what it did. 

1. For the above reasons, I have not been persuaded that the Tribunal’s decision was affected by jurisdictional error on any of the grounds argued before me. The decision is therefore a privative clause decision, for which relief is barred by s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding ninety‑six (96) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  13 April 2006