SZGNJ v Minister for Immigration

[2006] FMCA 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA  91

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa.

Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B

Abebe v Commonwealth of Australia [1999] HCA 14

Craig v State of South Australia (1995) 184 CLR 163

Director of Plant and Animal Quarantine v Australian Pork Ltd [2005] FCAFC 206

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Johnson v Johnson [2000] HCA 48
Kopalapilliai v Minister for Immigration & Multicultural Affairs [1998] 1126 FCA
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Luu v Renevier (1989) 91 ALR 39
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
NASA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 653
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte
Durairajasingham (2000) 168 ALR 407

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998
SZBVE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1325
SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203
SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous
Affairs [2002] FCAFC 266

Applicant: SZGNJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG1538 of 2005

Delivered on: 24 February 2006

Delivered at: Sydney

Hearing date: 8 November 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Dr J Azzi

Solicitors for the Applicant: Allen Arthur Robinson

Counsel for the Respondents Mr T Reilly

Solicitors for the Respondents Sparke Helmore

ORDERS

1. The Refugee Review Tribunal is joined as second respondent.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1538 of 2005

SZGNJ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court on 15 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on

   
   

   17 May 2005 and handed down on the same date.  It affirmed the decision of the delegate of the first respondent (“the delegate”) made on 22 February 2005 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks relief against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGNJ”.

3. Consistent with the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs, the first respondent.

4. Counsel for the applicant, Dr Azzi, tendered and applied for an affidavit of Alison Louise Barnett sworn on 7 November 2005 (“the affidavit of Ms Barnett”) to be admitted into evidence.  Dr Azzi also tendered the Tribunal hearing tapes and advised the Court that there was agreement between the parties in respect of the transcript and the amendments it contains.  A Court Book (“CB”), prepared by the respondents’ solicitors, was filed and served on 15 July 2005.

Background

1. The applicant, who claims to be a national of Pakistan, arrived in Australia on 11 September 2000.  He arrived on a visitor’s visa and his stated purpose was to see the Sydney 2000 Olympic Games.  The applicant’s visa was valid until 11 December 2000.  He applied for and received one visa extension, valid until 11 March 2001.  The applicant then overstayed his visa.  He worked illegally over the next four years, first as an assistant manager of a grocery shop and then for three other employers.  The applicant was unemployed for a few months in 2002 and also in 2004 but he again found work.  The applicant was detained at the Villawood Immigration Detention Centre on 13 January 2005 (CB 107).

2. On 11 February 2005 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (CB 2-31). On 22 February 2005 the delegate refused to grant a protection visa (CB 33-41) and on 25 February 2005 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 43-46).

3. The applicant was raised in Shaidu in the North West Frontier Province of Pakistan and later studied in Islamabad before coming to Australia.  He claims fear of persecution in Pakistan for Convention related reasons of “membership of a particular social group” on the basis of claimed bisexuality. 

4. The applicant stated that he came to Australia for recreational purposes and then stayed in Australia working in a relative’s business.  He claims his family in Pakistan discovered he was having sexual relations with other men here in Australia and that he would be killed upon returning to Pakistan for shaming his family and for deviating from Islam.  The applicant does not claim to be exclusively homosexual, but to be bisexual.  He provided independent evidence of male to male sexual activities being quite common in some of the more religious, conservative communities in Pakistan and amongst males who marry, or later marry and have children.  The applicant claims he has stopped practising his Muslim faith and that, even if his family does not kill him, other Muslims may do so when they see his disrespect for the Muslim religion, or coerce him into observing Muslim practices (CB 110).

The Tribunal’s findings and reasons

1. The Tribunal made a finding that the applicant's claims were recent fabrications that he concocted in response to his having been detained (CB 130).  It was confident that his efforts to depict himself as a bisexual or homosexual were completely disingenuous (CB 129-130).  The Tribunal found that the applicant completely lacked credibility (CB 130).

2. The Tribunal’s adverse findings in relation to the applicant's credibility were the sole reason for its decision.  It did not proceed to examine the independent country information about bisexuality or homosexuality in Pakistan or the case law regarding the implications of being discreet about bisexuality or homosexuality (CB 130).

Application for review of the Tribunal’s decision

1. On 15 June 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 28 October 2005 solicitors for the applicant filed a further amended application. A review of the Court file does not disclose an amended application. The further amended application contained the following grounds:

   1.The decision is void for jurisdictional error because the Tribunal failed to comply with the mandatory requirements in section 424A of the Migration Act 1958 (Cth).

   Particulars

   (a)The applicant's written statement accompanying his protection visa application (CB 27-30) was information which formed part of the Tribunal's reason for affirming the decision under review.  The Tribunal made particular reference to the following aspects of the applicant's earlier written statement in reaching its conclusion that the applicant entirely lacked credibility:

   (i)the applicant's statement that he would meet many men at clubs on George Street who he would go home and sleep with when the independent evidence showed there were no gay clubs on George Street (CB 115-116, 127-129);

   (ii)the fact that the written statement did not refer to Oxford Street when the applicant stated at the hearing that he used to visit Oxford Street as well as George Street (CB 116, 128-129);

   (iii)the fact that the applicant said in the written statement that Azhar was his "flatmate" when he said at the hearing that Azhar never lived with him (CB 114, 126); and

   (iv)the fact that the applicant said in the written statement that Azhar informed the applicant's relatives in Australia about the applicant's sexuality when at the hearing he said Azhar informed Azhar's family in Pakistan about the applicant's sexuality (CB 114, 126-127).

   (b)Through independent investigations, the Tribunal obtained the following information relating to the "sauna" referred to by the applicant at the hearing (page 17 Transcript), which was integral to its adverse findings regarding the applicant's credibility:

   (i)that there is a gay sauna near the Shell petrol station on Flinders Street called "Bodyline" (CB 116);

   (ii)that there is no other gay sauna in that area so the applicant must have been referring to "Bodyline" (CB 116-117, 119);

   (iii)descriptions of the facilities and layout of "Bodyline" (CB 117-119); and

   (iv)that the applicant's description of the sauna was inconsistent with the objective features of "Bodyline" (CB 117-119, 128-129).

   (c)Through independent investigations, the Tribunal obtained information that there were no gay clubs in George Street (CB 115), which was integral to its adverse findings regarding the applicant's credibility (CB 127-128).

   (d)The Tribunal breached s424A of the Migration Act 1958 (Cth) because it did not give the applicant particulars in writing of the information set out in (a), (b) and (c) and invite the applicant to comment on it.

   2.The Tribunal constructively failed to exercise its jurisdiction in circumstances where it made manifestly unreasonable credibility findings and unreasonably gave excessive weight to matters of no great importance.

   Particulars

   (a)The Tribunal's adverse credibility findings were based in part on the following mistakes and misapprehensions:

   (i)the Tribunal drew inferences adverse to the applicant because he allegedly said he was given a ticket at the sauna, which did not seem to make sense and which was contrary to the independent evidence (CB 117-118, 128).  In fact it was the Tribunal member who first mentioned a ticket (page 19 Transcript) and the applicant never stated that he had been given a ticket.

   (ii)the Tribunal's finding that the claims about Azhar were a fabrication was based in part on its mistaken perception that the applicant had altered his account from Azhar being his "flatmate" to saying that he "never lived with him" (CB 114, 126).  The applicant did not in fact change his evidence but merely clarified it to explain that Azhar stayed with him most of the time but was not living there permanently (page 4 Transcript);

   (iii)the Tribunal's finding that the claims about Azhar were a fabrication was based in part on its mistaken perception that the applicant had altered his account regarding the number of times he called Azhar following the revelations about his sexuality (CB 127).  The applicant did not in fact alter his account but had always stated that he had called Azhar a "couple of times" (page 11 Transcript); and

   (iv)the Tribunal's finding that the applicant had never been inside a gay sauna was based in part on its perception that the applicant had "invented an accompanying person in order to avoid questions as to detail" (CB 128).  In fact, the applicant had always maintained that he went there with a friend (page 17 Transcript).

   (b)In making its credibility findings, the Tribunal gave excessive weight to the following matters of no great importance:

   (i)the applicant's inability to recall intricate details of the gay sauna he had visited, in circumstances where he maintained that he was not a regular visitor and usually had visitors come to his place (page 20 Transcript);

   (ii)the implausibility of a strict Muslim family permitting their son to travel to Australia to see the Olympic Games, in circumstances where there was no evidentiary or common sense reason to think that was implausible (CB 126); and

   (iii)the inconsistency between the applicant's written statement that the revelations about his sexuality took place about two years after he was living in Beverly Hills and his account at the hearing that it was in fact four to five months (CB 113-114, 126), in circumstances where the applicant had already corrected the error in a letter to the Department dated some two months prior to the Tribunal hearing (CB 32).

   3.The applicant was denied procedural fairness and natural justice in circumstances where from the conduct of the Tribunal, including what was said and done at the hearing, and from the terms of the reasons, it appears the decision was affected by apprehended and actual bias.

   Particulars

   (a)The applicant repeats the particulars in paragraph 2 above.

   (b)The Tribunal hearing was affected by unfairness in the following ways:

   (i)the Tribunal repeatedly cut off the applicant mid-sentence (for example, pages 5.2 and 9.3 Transcript) and interrupted the interpreter (page 31.4 Transcript);

   (ii)the Tribunal purposefully asked the applicant incorrect and inflammatory questions (pages 11.8 and 28.9 Transcript);

   (iii)the Tribunal asked long, convoluted, complex, bundled and discursive questions (pages 9.2, 14.7, 16.4 and 20.9 to 21.2 Transcript);

   (iv)the Tribunal did not accede to the applicant's reasonable request to repeat a question (page 10.2 Transcript); and

   (v)the Tribunal confused the relationship of independence between it and the Department by referring to both as the one entity – "us" (page 26.7-8 Transcript).

   (c)The Tribunal's account of the applicant's evidence concerning a visit to a sauna (CB 116-118 and CB 128) contains the following discrepancies between the Tribunal's account and the evidence actually given.

   (i)The Tribunal in its decision stated that,

   Not everyone is comfortable talking about sex … This is one of the reasons the Tribunal chose to focus on the "changing room" stage, at the beginning of the visit, rather than try to draw out detail as to what occurred or did not occur later (CB 117).

   In fact, the Tribunal said to the applicant:

   (A)"What else do you do there … after your shower" (page 18 Transcript, repeated many times);

   (B)"Why does he take you there to have a shower and then just get clean and then go" (page 18 Transcript)

   (C)"Most of the people there what are they doing there?" (page 20 Transcript)

   (D)"Simply, you went there for a purpose, OK that place exists for a purpose and you are talking to me like you have no comprehension about the main reason for going there" (page 20 Transcript)

   (ii)The Tribunal asserted that the applicant was evasive at the start: "(it's a place)" (CB 128): the applicant in fact said at the start:

   It's the place that where like men go – other side was the petrol pumps, Shell petrol pump, and the opposite front of the opposite was the club, 3, 4 clubs, and next door sauna and I go some time with a friend there and take shower together.

   (iii)The Tribunal stated at CB 117 (emphasis added):

   the applicant described a place where one pays money and is given a towel and, as he put it, a ticket.

   In fact, it was the Tribunal which asked "They give you a ticket" to which the applicant replied "I have no idea, he paid the money…" (page 19 Transcript).

   (iv)The Tribunal said that the applicant did not know the entry fee to the sauna "introducing evidence of a friend taking him there and paying for him" (CB 117).  The applicant did not "introduce” evidence of a friend in response to that question: the applicant asserted from the beginning that he went with a friend (compare page 18 Transcript re the entry fee and page 17 "I go some time with a friend").

   (v)The Tribunal asserted that it asked the applicant to describe a "walk-through from the street" (CB 117).  It did not do so.

   (vi)The Tribunal said that the applicant said he saw men swimming together (CB 117).  The applicant did not say this.

   The Tribunal constructively failed to exercise its jurisdiction under section 36(2) of the Migration Act 1958 (Cth)

The law

1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].

2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v State of South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

Submissions

1. Dr Azzi and his instructing solicitors prepared detailed written submissions which were supplemented by counsel’s argument.  The instructing solicitors prepared a folder containing all the authorities referred to by the applicant and the respondents in their written submissions.  Although orders are usually made at the first Court date hearing requesting that parties file photocopies of any case title page and pages of the decision that will be referred to in argument, these orders are not always complied with.  The filing of extracts for all cases referred to by both the applicant and respondents is of great assistance to the Court and the instructing solicitors are thanked for their efforts in the preparation of those extracts.

2. Counsel for the respondents also provided written submissions which were complemented by concise and helpful oral submissions.

Reasons

1. In respect of the applicant’s first ground, Dr Azzi submitted that the applicant had provided a written statement which accompanied his protection visa application (CB 27-30). That written statement was "information" within the meaning of s.424A: SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 (“SZECF”) per Allsop J at [18]-[20]. The applicant did not expressly rely upon the terms of his protection visa application in the application for review by the Tribunal. The information did not therefore assume the character of information given for the purpose of the application for review under s.424A(3)(b): NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744.

1. The issue is whether the written statement, or information contained within, can be said to be information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 

2. As Allsop J noted in SZECF at [21], there is a distinction, sometimes fine but nevertheless important, between information which may be knowledge acquired by the Tribunal, and the subjective appraisal or thought processes of the Tribunal: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [116].

3. In this case, the reason the Tribunal affirmed the decision under review was its finding that the applicant completely lacked credibility. Dr Azzi argues that information which was the reason or part of the reason for the Tribunal's complete rejection of the applicant's credibility would fall within s.424A(1).

4. The contents of the applicant's earlier written statement, including one matter that was not said, were an integral part of the Tribunal's complete rejection of the applicant's credibility: SZECF at [29]. Counsel for the applicant submits that this case falls within the principle outlined by Allsop J in SZECF.  The Tribunal's knowledge of the contents of the earlier statement, including the limits of its contents, was instrumental in the Tribunal reaching a conclusion that the oral evidence of the applicant was false and that he completely lacked credibility: SZECF at [34].

5. As in SZECF and SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203 (“SZDKK”), the Tribunal made particular reference to aspects of the applicant's earlier written statement in reaching its conclusion that the applicant entirely lacked credibility.

6. One of the primary reasons for the Tribunal's finding that the applicant's evidence about his sex life in Australia was unreliable was that it was concerned by his evidence that he had "picked up" men to sleep with at clubs in George Street (CB 127-128).  The independent evidence showed that there were only "straight" dance clubs in George Street, not gay clubs.  It was the Tribunal's knowledge of the applicant's earlier written statement that alerted the Tribunal’s concern.  The statement reads that the applicant would: "go out with friends on Thursday and Friday night on George Street, and go to clubs, and meet many men (whom he) would go home and sleep with" (CB 28).  The Tribunal made explicit reference to the above extract and also made the following observations (CB 115):

   The applicant gave scant, undetailed evidence to DIMIA about the places he habituated.  He did not name the clubs in George Street, Sydney, where he met "many" men for sex.  The Tribunal could not find the clubs of George Street listed in any Sydney gay and lesbian entertainment or contact guides.  The Tribunal could not find George Street itself listed in any Sydney gay and lesbian guides.

7. Another integral reason why the Tribunal rejected the applicant's evidence about his sex life in Australia was that his earlier written statement to the Department did not refer to Oxford Street, when the applicant stated at the hearing that he used to visit Oxford Street as well as George Street (CB 116, 128-129).  The Tribunal's reasons for decision make express reference to this omission:

   “The applicant said at the hearing that he used to visit Oxford Street as well as George Street.  He had not mentioned Oxford Street in his evidence to DIMIA.”   (CB 116)

   “The Tribunal notes that the applicant never referred to Oxford Street in his evidence to DIMIA.  The impression the Tribunal has is that the applicant came to refer to Oxford Street in later evidence after being coached.”   (CB 128)

8. The Tribunal's impression that the applicant had been "coached" clearly played a significant role in the Tribunal's assessment of his overall credibility.  It concluded that the applicant, aided by minimal research, had concocted his evidence of having visited clubs in George Street and Oxford Street (CB 129).

9. Also central to the Tribunal's ultimate conclusion was its finding that the applicant had fabricated his claims about Azhar (CB 126), including:

   a)his claim that Azhar had been a sexual partner in the first place (CB 126);

   b)his claim that he faced persecution in Pakistan as a result of Azhar's revelations (CB 127); and

   c)his claim that his family or society back in Pakistan was informed by Azhar or anyone else of his being a bisexual or homosexual (CB 127).

10. Dr Azzi submits that the Tribunal's findings on this issue relied heavily on perceived inconsistencies between information in the applicant's written statement and the oral evidence he gave at the hearing, in particular:

    a)the fact that the applicant said in the written statement that Azhar was his "flatmate" when he said at the hearing that Azhar never lived with him (CB 114 and 126); and

    b)the fact that the applicant said in the written statement that Azhar informed the applicant's relatives in Australia about the applicant's sexuality when at the hearing he said Azhar informed Azhar's family in Pakistan about the applicant's sexuality (CB 114, 126-127).

11. The Tribunal member took the applicant directly to his written statement at the hearing, expressing his concern in relation to its inconsistencies with the applicant's oral evidence (pages 6 -11 Transcript).  At page 28 of the Transcript, the Tribunal member made the following comment:

    “I have some concerns about the reliability of your evidence about being homosexual or bisexual.  About a relationship with Azhar, about Azhar's denunication of you.  I have problems with those claims because of, well factual problems that arise through the story.”

12. Dr Azzi further submits that it appears from that comment that the Tribunal member considered that his findings on the Azhar point might well be central to his ultimate conclusion on the reliability of the applicant's evidence that he was homosexual or bisexual.  Further that the Tribunal's decision (CB 126-127) indicates that the discrepancies between the applicant's original written account and his oral evidence were central to the Tribunal's ultimate conclusion.

13. In SZDKK, Allsop J observed at [22] that in rejecting the appellant's evidence in that case, the Tribunal had on a number of occasions referred to the appellant's written statement provided to the Department. It noted that there were marked inconsistencies between the applicant's oral and written claims which the applicant was unable to satisfactorily explain. Allsop J concluded at [25]:

    On the three occasions referred to in the extracts above, the Tribunal incorporates in its reasoning process the fact that the earlier statement (the information for s 424A(1)) did not record something that he was giving evidence of. It cannot be said that the use by the Tribunal here was as marked or as central as the use by the Tribunal of the prior statement in SZECF. Nevertheless, looking at the way that the Tribunal here has expressed its reasons, I conclude that the use of the information itself is at least a part of the reason for the decision.

14. Dr Azzi contends that if the use by the Tribunal of the applicant's earlier written statement in the present case was not as marked as that by the Tribunal in SZECF, the present case at least falls squarely within the reasoning by Allsop J in SZDKK.  The content of the applicant's written statement and the perceived inconsistencies between it and his oral evidence were a central part of the Tribunal's reasons for finding that he completely lacked credibility.

15. Through independent investigations, the Tribunal also obtained the following information relating to the "sauna" referred to by the applicant at the hearing (page 17 Transcript):

    a)that there is a gay sauna near the Shell petrol station on Flinders Street called "Bodyline" (CB 116);

    b)that there is no other gay sauna in that area so the applicant must have been referring to "Bodyline" (CB 116-117, 119);

    c)descriptions of the facilities and layout of "Bodyline" (CB 117-119); and

    d)that the applicant's description of the sauna was inconsistent with the objective features of "Bodyline" (CB 117-119, 128-129).

16. Dr Azzi argued that the inconsistencies between the applicant's description of the sauna and the independent information obtained by the Tribunal, were integral to the Tribunal's adverse findings regarding the applicant's credibility, namely its assessment of the "Bodyline" issue.

17. Dr Azzi also argued that the sauna was something that the applicant only mentioned in passing at the hearing (page 17 Transcript).  It was not something he had mentioned previously in either his written statement to the Department or in his written submissions to the Tribunal.  At the hearing, however, the Tribunal member focussed in intricate detail on the layout and facilities of the "Bodyline" sauna.  The applicant contends that it is not clear why the Tribunal member had access to such detailed information regarding the sauna, given that he had not been put on notice that it would form part of the applicant's evidence.  The level of detail involved in the Tribunal member's discussions and reasoning regarding "Bodyline" suggests, however, that once the issue arose, he intended to use it as a critical test of the applicant's credibility.

18. Dr Azzi contends that in those circumstances, the information regarding "Bodyline" was information the Tribunal considered would be the reason, or part of the reason, for making findings adverse to the applicant's credibility and affirming the decision under review.  The information cannot be categorised as being "relatively minor and unimportant in the scheme of things": see VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”) per Finn J and Stone J at [41]. Rather, because in the Tribunal member's mind it formed a critical test of credibility, it was information that was so integral to the reasoning process rejecting the applicant's claim as to require as a matter of fairness that the applicant be told that information and why it was relevant to the review pursuant to s.424A: VAF per Finn J and Stone J at [41]; see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158.

19. Dr Azzi argues that once it emerged that the "Bodyline" information was information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, s.424A was triggered and the Tribunal had mandatory obligations to provide that information to the applicant in writing and invite him to comment on it. It was not sufficient for the purposes of s.424A that the Tribunal member only gave the applicant particulars of the information orally at the hearing and invited him to comment on them.

20. Similarly, through independent investigations the Tribunal obtained information that there were no gay clubs in George Street (CB 115).   That information was also integral to its adverse findings regarding the applicant's credibility (CB 127-128).

21. The applicant thus submits that the Tribunal breached s.424A of the Migration Act 1958 (Cth). It was required to give the applicant particulars in writing of both the important information in his written statement and the information obtained in its independent investigations regarding "Bodyline" and gay clubs in Sydney. The transcript of the hearing and the Tribunal's reasons for decision demonstrate that the Tribunal considered that that information would be part of the reason for rejecting the applicant's evidence and affirming the decision under review. The Tribunal did not give the applicant written particulars of the information, ensure that the applicant understood why it was relevant to the review, nor invite the applicant to comment on it. It fell into jurisdictional error by breaching a mandatory requirement of the Act and the decision should be set aside on that basis alone.

22. Mr T Reilly of counsel, appearing for the respondents, firstly addressed the Tribunal decision in its entirety and submitted that the Tribunal comprehensively disbelieved the applicant.  It found that all of the applicant’s claims of homosexual activities after his teenage years, whether in Pakistan or Australia, were fabrications.  As was his claim that a lover in Australia had informed the applicant’s family of his activities, and his claim that his family was religiously conservative and wished to harm him (CB 123-129).  Counsel submitted that these findings were matters of fact for the Tribunal par excellence:  Re Minister Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67].

23. In circumstances where the Tribunal’s credibility findings were open to it, no error is demonstrated in such conclusion: Kopalapilliai v Minister for Immigration & Multicultural Affairs [1998] 1126 FCA at 558-559; W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 per Tamberlin and R D Nicholson JJ at [64]-[69]. Mr Reilly submitted that the Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia [1999] HCA 14 at [137].

24. In respect of the s.424A issue, Mr Reilly submitted that s.424A of the Act deals with factual information that is specifically about the applicant. It does not deal with contradictions about evidence: WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 per Marshall, Weinberg and Jacobson JJ at [26]. Mr Reilly argued that it does not deal with material that is not specifically about the applicant and is contained in the exception in s.424A(3)(a). Mr Reilly argued that those two principles cover almost all of the examples of breach of s.424A suggested in the submissions by the applicant.

25. Specifically, in regards to the claim that the applicant had visited George Street looking for homosexual encounters, the claim appears to have been resubmitted both at the hearing and the post hearing submissions by the applicant: CB 73.6. It was submitted that it was therefore given for the purposes of the review within s.424A(3)(b): SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 per Lindgren J at [28]. Mr Reilly argued that these claims were not accepted (CB 129.3), so cannot be the reason or part of the reason for the Tribunal’s decision. It was submitted that for these reasons there was no breach of s.424A as concerns this claim.

26. In respect of the claims concerning Azhar, Mr Reilly submitted that the Tribunal did not adopt the protection visa claim concerning Azhar as opposed to the later claims, but simply noted the inconsistency between the claims and did not accept that any of the applicant’s claims were true (CB 126.7-128.4). Consequently, the reasoning process does not engage s.424A: SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 (“SZEKY”) per Lindgren J at [20]-[24], followed in SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221 per Dowsett J at [11] and also in SZBVE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1325 per Magdwick J at [8]-[10]. Mr Reilly submitted that it was these three cases SZEKY, SZERV and SZBVE rather than SZECF and SZDKK (relied upon by the applicant) which are relevant on the facts of this matter.

27. Dr Azzi submitted that Mr Reilly’s assertion – that none of the substantive claims contained in the applicant’s protection visa statement were accepted and therefore could not be part of the reasons for the Tribunal’s decision – is made without authority and is plainly wrong. 

28. Counsel for the applicant disputed the reason for the Tribunal affirming the decision under review in the present case was its finding that the applicant completely lacked credibility.  The contents of the applicant’s earlier written statements were an integral part of the reasons for the Tribunal’s complete rejection of the applicant’s credibility.  It was argued on behalf of the applicant that the respondents’ reliance on the reasoning in SZEKY per Lindgren at [23] was incorrect. It was also argued that it is by no means clear that his Honour’s reasoning in that case was intended to amount to an overarching requirement that the applicant’s claims be accepted before they could form part of the reasons for the Tribunal’s decision. Further, that neither of the cases cited by the respondents, that followed SZEKY, made any reference to the need of the applicant’s claim to be “accepted” in order for s.424A(1) to apply.

29. Mr Reilly submitted that it was suffice to note that that line of authority not only has not been overruled but it has been confirmed on two occasions by Dowsett J and Magdwick J.  Nor does it in any way conflict with His Honour Allsop J’s decision in SZECF.

30. The decision of SZECF was a case where what was not said in the protection visa application was regarded as so central as to be the reason for the ultimate decision, finding against the applicant. In those circumstances, His Honour was of the view that the protection visa application itself, including what was not said in it, was information for the purpose of s.424A.

31. The decision of SZECF is not an apposite authority.  It is a case where there are contradictions between what an applicant said at one stage, then said before the Department in a protection visa application and then later to the Tribunal.  His Honour Lindgren J dealt with a similar factual situation in SZEKY and found that where there has been an adoption by the Tribunal of the correctness of what is said in a protection visa application, but rather simply a reliance on the contradiction between what is first said and what is later put to the Tribunal. It is the contradiction that is the reason for the Tribunal’s decision and contradiction is not information for the purpose of s.424A.

32. In SZEKY at [21] His Honour refers to the Full Federal Court decision of WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 (“WAGP of 2002”) which confirms that “an inconsistency between two pieces of information is not in itself information for the purpose of s.424A(1)”.

33. Further at paragraph [23] of WAGP of 2002:

    With regard to the meaning of “information” for the purposes of s424A(1), counsel referred to the judgment of the Full Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212, [2001] FCA 56 at [17] to [22], where the following was said, in the context of s424(1):

    "For these reasons, it may not strictly be necessary to consider the meaning of the word “information” as used in s424(1) of the Migration Act. Nonetheless, we should record our view that the construction advanced by the appellant is too narrow.

    The Macquarie Dictionary includes these definitions of the word “information”: “1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge in various subjects, however acquired”. The Oxford English Dictionary (2nd ed, 1989) includes among its definitions of “information”: “3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told”. (Emphasis added). As these definitions show, “information” is capable of different shades of meaning, depending on the context.

    The appellant’s contention, as we understand it, is that “information” in s424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s424(1) as to the nature of “any information” that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated.

    The point is reinforced by reference to s424A(1). The obligations imposed by that provision apply when the RRT has “information”, regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 366-367; 175 ALR 548, at 562-563, per Hill J. It follows that an applicant may be able to show that particular “information” in the possession of the RRT is completely worthless. It is hardly likely that the word “information” is used in s424A(1) in a sense different from its meaning in s424(1). Indeed, Ms Winfield conceded as much.

    Similarly, the Migration Act provides that an applicant may be invited to supply “additional information” to the RRT: see s424(2); s424B(1), s424B(2); s424C(1). The additional information provided in response to such an invitation may or may not have any factual basis and may or may not rise above the level of assertion. It is an everyday occurrence for the RRT to reject as fabricated “information” provided by applicants.

    It is not necessary for the purposes of the present case to explore the outer limits of the word “information” as used in s424(1) and s424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant’s account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant’s account of events.”

1. Mr Reilly submits that there is no breach of s.424A in the circumstances where the contradiction rather than the acceptance of the truth was the reason for the Tribunal’s decision.

2. Mr Reilly argued that SZEKY is the relevant authority in this situation and that until the law is clarified, this Court is bound not only by SZECX but also by SZEKY.  He also submitted that SZEKY’s line of authority is the relevant one for matters to be decided in this case.

3. In respect of ground two, the applicant claimed the Tribunal’s decision was manifestly unreasonable and infected by judicial error, both because the Tribunal:

   a)gave excessive weight to matters of no great importance; and

   b)relied on a number of mistakes and misapprehensions in making credibility findings adverse to the applicant.

   Dr Azzi cites as authority Minister for Aboriginal Affairs v Peko-Wallsend Ltd per Mason J (as he then was) (“Peko-Wallsend”) at 41.

4. Dr Azzi contends that in making its credibility findings, the Tribunal gave excessive weight to the following relevant factors of no great importance:

   a)the applicant's inability to recall intricate details of the gay sauna he had visited, in circumstances where he maintained that he was not a regular visitor and usually had visitors come to his place (page 20 Transcript);

   b)the implausibility of a strict Muslim family permitting their son to travel to Australia to see the Olympic Games, in circumstances where there was no evidentiary or common sense reason to think that was implausible (CB 126); and

   c)the inconsistency between the applicant's written statement that the revelations about his sexuality took place about two years after he was living in Beverly Hills and his account at the hearing that it was in fact four to five months (CB 113-114, 126), in circumstances where the applicant had already corrected the error in a letter to the Department dated some two months prior to the Tribunal hearing (CB 32).

5. Dr Azzi submits that the Tribunal's adverse credibility findings were also based in part on the following mistakes and misapprehensions:

   a)The Tribunal drew inferences adverse to the applicant because he allegedly said he was given a ticket at the sauna, which did not seem to make sense and which was contrary to the independent evidence (CB 117-118, 128).  In fact it was the Tribunal member who first mentioned a ticket (page 19 Transcript) and the applicant never stated that he had been given a ticket.

   b)The Tribunal's finding that the claims about Azhar were a fabrication was based in part on its mistaken perception that the applicant had altered his account from Azhar being his "flatmate" to saying that he "never lived with him" (CB 114, 126).  The applicant did not in fact change his evidence but merely clarified it to explain that Azhar stayed with him most of the time but was not living there permanently (page 4 Transcript).  The fine distinction between that clarification and a "flatmate" could not be considered to be an alteration of the applicant's account, particularly in light of the fact that English is not his first language;

   c)The Tribunal's finding that the claims about Azhar were a fabrication was based in part on its mistaken perception that the applicant had altered his account regarding the number of times he called Azhar following the revelations about his sexuality (CB 127).  The applicant did not in fact alter his account but had always stated that he had called Azhar a "couple of times" (page 11 Transcript); and

   d)The Tribunal's finding that the applicant had never been inside a gay sauna was based in part on its perception that the applicant had "invented an accompanying person in order to avoid questions as to detail" (CB 128).  In fact, the applicant had always maintained that he went there with a friend (page 17 Transcript).

6. It has been outlined above in relation to the s424A ground that the Tribunal's findings on both the "Bodyline" and “Azhar” matters were critical to its ultimate conclusion in relation to the applicant's credibility. Dr Azzi submitted that those findings were based on significant mistakes in the way the Tribunal dealt with the applicant's evidence. As the Full Federal Court noted in Luu v Renevier (1989) 91 ALR 39 at 47:

   The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding.  If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected.  But where the finding is critical to the ultimate decision, it is impossible to sustain the decision.

7. Dr Azzi contends that the combination of the Tribunal's giving excessive weight to matters of no great importance and the series of errors outlined above led it into jurisdictional error. 

8. As Conti J expressed in NASA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 653 at [65], the Tribunal's findings in that matter “evince to a sufficiently significant and persuasive extent shortcomings and other errors in the Tribunal's approach to, and comprehension of” the evidence. His Honour found that:

   those shortcomings and other errors materially contributed to the findings and conclusions of the Tribunal destructive of the credibility and viability of the appellant’s case, and a failure otherwise to determine the fundamental issues raised by the appellant’s case which the appellant had sought to present, without legal representation,  to the Tribunal.

9. Mr Reilly for the respondents submitted that the Tribunal was entitled to attribute weight to the evidence before it:  Wu Shan Liang at 281-282 and it is the Tribunal’s position to allocate the appropriate weight in that consideration: Peko-Wallsend per Mason J at [41]. Counsel also submitted that while the applicant relied on Wednesbury or “manifestly” unreasonableness (Peko-Wallsend at [41]), this is a very high threshold to satisfy. It is far more difficult to apply it to alleged unreasonable findings of fact rather than an unreasonable exercise of a discretion: Director of Plant and Animal Quarantine v Australian Pork Ltd per Heerey, Branson and Lander JJ at [63]-[66], [103]. Mr Reilly argued that the applicant’s submissions (noted at paragraph 46 above) simply assert that the matters particularised are not of great importance, but these matters are only a few among the many considerations given by the Tribunal (CB 123-131) that cumulatively led it to disbelieve the applicant.

10. Mr Reilly argues that the examples pleaded in the particulars of ground two of the further amended application under subparagraph (a) are, upon analysis, not errors by the Tribunal.  They are simply examples of where the Tribunal has taken a particular view that was open to it on the applicant’s oral evidence.  

11. Ground 2(a)(i) concerns a ticket that was first mentioned by the Tribunal.  This is accepted by the respondent and the reference appears at the top of page 19 of the transcript.  However, at the bottom of page 19 the following exchange occurs:

    TM:So does he give you a ticket?

    Applicant:He was giving it to him, that’s what I know.

    TM:Okay.  So you take the clothes, put your towel on, give your clothes to this person and then he gives you a ticket.

    Applicant:I give him to that person, that friend, that Aussie and he is taking his one but I say to you – but I don’t know where – it was some dark there.

    Mr Reilly argues that it was open for the Tribunal to infer from what the applicant said, that he agreed that he had been given a ticket.  Therefore, it was open to the Tribunal to later say that this was one of many reasons why it found the applicant’s evidence implausible because a ticket would get wet in a sauna.  Whether another person would have drawn the same inference from what was said in the transcript is not relevant.  What is relevant is whether it was an open conclusion for the Tribunal to have drawn from the evidence given by that hearing.

12. The claim in ground 2(a)(ii) was that the Tribunal acted unfairly in saying that there was a contradiction between the applicant’s original claim that Mr Azhar was his flatmate and his later claim that “Mr Azhar had never lived with him.” 

13. Dr Azzi for the applicant suggested this was a mere clarification.  The original claim is contained in the applicant’s statement submitted with his original protection visa application (CB 28 at [9]).

    [9]“But this happiness of mine was short lived, as two of my very distant relatives who were also living in Australia came to know about my same sex indulgence from my flatmate, Azhar Ali Shah.”

    Subsequently in the hearing the applicant said that Mr Azhar was not his flatmate but visited with him occasionally.  Mr Reilly submits that is open to the Tribunal to regard that as a contradiction.  Dr Azzi contends that the subsequent statement is merely a clarification and suggested that it should not be considered to be anything more.

14. Mr Reilly submits that this is not an error on the part of the Tribunal but simply a less generous interpretation than that being promoted by Dr Azzi.  The fact that other interpretations may be open does not alter the fact that the Tribunal’s interpretation was also available to it.  The applicant changed his evidence.  He started by saying that Azhar was his flatmate and then in his oral evidence to the Tribunal said that Azhar did not live with him but visited him occasionally. 

15. The claim in ground 2(a)(iii) concerns the applicant’s evidence regarding the numbers of times that he called his friend Azhar.  In evidence given by the applicant to the Tribunal, the applicant makes the following statement (Transcript p.11):

    TM:Did you ever ask him?

    Applicant:I called him one time, but he didn’t, like he didn’t want I was angry and just asked him like what did you do and with me it’s okay.

    What the applicant subtly submitted in a post-hearing submission to the Tribunal was that he called Mr Azhar twice.  This is contained in the applicant’s statement attached to a letter submitted on his behalf by the Refugee Advice and Casework Service [Australia] Inc., who were the migrant advisory agents retained by the applicant.  The relevant information is contained in paragraph 13 of the applicant’s statement (CB 80.13):

    [13]All I know is that in February 2001 I rang home and my family told me that they had heard that I had had sexual relations with men.  They told me that they had had this information from Azhar’s family and that is all.  I rang Azhar twice after that phone call to ask him why he told his family about me, but he said that he did not do it.  All I know is what my mother has told me.

    Mr Reilly submits that there may be some lack of clarity in what the applicant says, however that does not prevent the Tribunal from noting that the evidence about the number of phone calls to Mr Azhar had changed.  The Tribunal is the finder of fact and in particular, the assessor of credibility.  It is irrelevant what a different party may have concluded from this evidence but there is nothing to suggest that the Tribunal has acted unreasonably or displayed apprehended bias.

16. The issue in ground 2(a)(iv) concerns the Tribunal’s finding that the applicant had never been inside a gay sauna.  During the Tribunal hearing the applicant indicated that he attended a sauna with a friend (Transcript p.17):

    Applicant: It’s the place that we’re like men go – other side was the petrol pumps, Shell petrol pump, and the opposite front of the opposite was the club, 3, 4, clubs, and next door sauna and I go some time with a friend there and take shower together.

    The Tribunal concluded that the applicant concocted that his friend attended the sauna.  Mr Reilly submits that this finding is not a mistake by the Tribunal, but rather an assessment of the evidence on the view which was open to it.  It is submitted that to prevent the applicant being caught out on matters of detail, he had thought up the claim that he went to a club with a friend who took care of matters for the applicant.  It is argued that this is simply a factual conclusion by the Tribunal, not a mistake.

17. The argument presented by Dr Azzi for the applicant is that the Tribunal made a series of mistakes when drawing its conclusion from the evidence before it.  Mr Reilly on the other hand submits that the Tribunal has not done anything that is unreasonable in the exercise of its fact finding function and that the conclusions that it drew were open to it. 

18. I agree with the submissions made by Mr Reilly that others may have come to a different conclusion in some circumstances in respect of these alleged errors.  However, the conclusion drawn by the Tribunal was open to it and consequentially jurisdictional error does not arise.

19. The alleged errors of the Tribunal in the applicant’s submissions (noted at paragraph 47 above) are, on examination of the relevant pages of the transcript, not errors.  They are simply arguments on the precise meaning of statements made by the applicant during the hearing. 

20. Mr Reilly for the respondent submits that the issues raised in ground 2(b) is plainly going to the merits of the matter because the weight the Tribunal gives to particular issues are matters for the Tribunal.  The issue raised in ground 2(b)(i), which concerns what the applicant is able to remember about gay venues that he went to, is a factual matter for the Tribunal. 

21. The issue in ground 2(b)(ii) concerns whether a Muslim family would permit their son to travel to a foreign country to see the Olympic Games.  The applicant claims that his family are strict, if not fundamentalist, and would be particularly outraged if they discovered that he was homosexual.  However, it is open to the Tribunal to determine whether it was a curious choice for a strict Muslim family to send their son to see the Olympic Games in Australia.  It is an assessment by the Tribunal of the evidence and the conclusion that it reached was open to it on the evidence presented. 

22. The issue in ground 2(b)(iii) concerns the Tribunal’s assessment of admitted inconsistency that the applicant attempted to explain in some of his evidence.  Similar to the issues above, this is a matter for the Tribunal to assess and to give the weight that it believes is appropriate.

23. The applicant’s third ground claims that the decision was affected by apprehended and actual bias.  Actual bias can be said to exist in instances where the Tribunal member had a pre-existing state of mind which disables him from undertaking, or renders him unwilling to undertake, any proper evaluation of the relevant materials before him: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [35] and [72]. Actual bias may be said to exist when the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71] and [72].

24. A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved:  Jia at p.531. The existence of actual bias may be inferred from facts and circumstances, however caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36].

25. Apprehended bias exists when a fair-minded lay observer, properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided:  Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 (“Ex parte H”) at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. Examples of such apprehended bias are:

    a)The applicant has been overborne or intimidated by the Tribunal:  Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [31].

    b)Fact finding of the Tribunal was conducted in a manner which was:

    (i)substantially unreasoned;

    (ii)in the nature of mere assertion that lacked rational or reasoned foundation;

    (iii)at times plainly and ex facie wrong; and

    (iv)selective of material going one way:  NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs  [2004] FCAFC 328 (“NADH of 2001”) at [115].

26. A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:

    a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion.  All that is required is for the Tribunal member to be open to persuasion:  Jia at [72] and [86].

    b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial prejudgment:  Jia at [179]-[187]; [244]-[245]; NADH of 2001 at [19]. In NADH of 2001 Allsop J (Moore and Tamberlin JJ agreeing) described this difference as follows:

    The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

    (c)Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented – often vigorously:  Ex parte H at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their account into question. Further, the decision maker’s assessment of the applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34].

    (d)Bias does not necessarily arise from illogical, irrational decision-making or inferences:  Applicant S20/2002 at [52], [75], [99]-[101].  Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence.  But such an approach, without more, does not necessarily demonstrate apprehended bias:  Applicant S20/2002 at [101] and [136].

27. The first issue that Dr Azzi raises under ground three is the aspect of apprehended bias in the decision itself.  In Sun Zhan Qui v Minister of Immigration and Ethnic Affairs (1997) 81 FCR 71, Burchett J noted at 133-134 that:

    Errors occur, but to err so many times and in such ways, and each time against the appellant, argues overwhelmingly for the conclusion that the Tribunal member proceeded to consider the case from a preconceived opinion and a fixed position so adverse to him that he could not obtain a fair hearing.  In my opinion, that situation fell within the provision of s476(1)(f): the decision was affected by actual bias.

    In case I should be wrong in reaching this conclusion, I have considered the same aspects of the decision from a different point of view.  A decision may, by virtue of extreme disparity between it and the material on which it is based, or for some other reason, give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision maker. …if the conclusion of actual bias should not be drawn, then I would conclude, upon the material to which I have referred, that the Tribunal member erred in law so as to misunderstand the true nature of her task…

1. Dr Azzi contends that the errors particularised in the further amended application fall within this description.  There are numerous errors of fact, most of which are adverse to the applicant.  The errors create the apprehension that the Tribunal listened to the evidence at the hearing with a preconceived opinion that the applicant was fabricating his story and that this belief caused the Tribunal to detect errors and inconsistencies where there were in fact none.  A number of these errors are identified in the submissions above concerning unreasonableness and the excessive weight given by the Tribunal to matters which were not of great importance.

2. Dr Azzi submits that a number of further errors arose in the Tribunal’s account of the discussion at the hearing concerning the gay sauna “Bodyline” – a discussion which was important in the Tribunal’s ultimate finding on credibility.  The Tribunal misstated the context of this discussion when observing that :

   Not everyone is comfortable talking about sex…This is one of the reasons the Tribunal chose to focus on the “changing room” stage, at the beginning of the visit, rather than try to draw out detail as to what occurred or did not occur later. (CB 117)

   The Tribunal said to the applicant:

   “What else do you do there…after your shower?” (Transcript p.18, repeated many times);

   “Why does he take you there to have a shower and then just get clean and then go” (Transcript p.18);

   “Most of the people there what are they doing there?” (Transcript p.20);

   “Simply, you went there for a purpose, OK that place exists for a purpose and you are talking to me like you have no comprehension about the main reason for going there” (Transcript p.20).

   Dr Azzi contends that there is a great disparity between how the Tribunal asserted it conducted the hearing and how it in fact conducted the hearing.

3. The Tribunal disbelieved the evidence of the applicant that he had been to a gay sauna.  The Tribunal noted in its conclusions:

   After an evasive start (“it’s a place”) the Applicant gave conflicting evidence about the changing room facilities…(CB 128)

   The applicant did not give “evasive” evidence at the start of the discussion of his visit to a gay sauna.  His evidence at the start was in fact quite concrete (Transcript p.17):

   It’s the place that where like men go – other side was the petrol pumps, Shell petrol pump, and the opposite front of the opposite was the club, 3, 4, clubs, and next door sauna and I go some time with a friend there and take shower together.

   The Tribunal’s conclusion that there was an “evasive start” creates the impression that the conclusions of the Tribunal were based on a pre-conceived conclusion that the applicant was dishonest, rather than being a conclusion based on the evidence before it.

4. Dr Azzi argues that the Tribunal clearly wanted the applicant to state that he received a ticket (Transcript p.19) but failed to obtain such a statement.  Nevertheless, in its decision the Tribunal stated (CB 117, emphasis added):

   The applicant described a place where one pays money and is given a towel and, as he put it, a ticket.

   In fact, it was the Tribunal which asked “They give you a ticket?” to which the applicant replied, “I have no idea, he paid the money…” (Transcript p.19).  Dr Azzi said once again that the Tribunal reached a conclusion which appears to be consistent with a preconceived view on the evidence the applicant would give, rather than on the evidence in fact given.

5. The Tribunal stated at CB 117:

   The Tribunal asked the applicant to state how much he paid for entry into the sauna.  He said he did not know, introducing evidence of a friend taking him there and paying for him.

   The Tribunal similarly concluded at (CB 128) that the applicant:

   Invented an accompanying person in order to avoid answering questions as to detail about the process of entering and using the facility.

   Dr Azzi argues that the applicant did not “introduce” or “invent” evidence of a friend in response to questions about the entry fee.  The applicant made it clear from the beginning of his evidence, before the issue of the entry fee was raised, that he went to the sauna with a friend.  The discussion of the entry fee is at Transcript p.18, whereas at page 17 the Applicant said:

   I go some time with a friend there.

   The friend is also referred to on page 18, before the entry fee is discussed.

6. Dr Azzi contends that the Tribunal also assert that:

   (a)it asked the applicant to describe a “walk-through from the street” (CB 117), when it did not do so; and

   (b)the applicant said he saw men swimming together (CB 117), when the applicant gave no such evidence.

   Although these two errors are not necessarily adverse to the applicant, they again illustrate the disparity between the evidence in fact given to the Tribunal and the Tribunal’s summary of that evidence.

7. Dr Azzi submits that the Tribunal’s account of the discussion of the applicant’s visit to the gay sauna is seriously flawed.  The number of errors, and the number of errors which are adverse to the applicant, create an apprehension that the Tribunal had a preconceived opinion of the applicant and could not give the applicant a fair hearing.  Alternatively, these errors suggest some other error of law in the manner in which the Tribunal carried out its task.

8. Mr Reilly for the respondent submits that the applicant’s claim is based on an allegation that the Tribunal made numerous errors of fact which indicated apprehended bias. However Mr Reilly argues that Dr Azzi takes issue with the interpretation of exchanges in the transcript but has not identified any errors of fact.  Mr Reilly relies on the arguments considered in respect of ground 2(a).  It is further submitted that the Tribunal’s account of the hearing (CB 115-118) is a reasonable summary of the applicant’s evidence at the hearing.  The impression made by that evidence on the Tribunal with the advantage of seeing the applicant in person giving evidence, is a factual matter for it alone.

9. I am persuaded by the argument forwarded by Mr Reilly that these findings are not a mistake by the Tribunal, rather an assessment of the evidence on the view which was open to it.  They are simply examples of where the Tribunal has taken a particular view on the applicant’s oral evidence.  Whether another person would have drawn the same inference on what was said in the transcript is not relevant.  What is relevant is whether it is open conclusion for the Tribunal to have drawn from the evidence given at the hearing.  It is not an error on the part of the Tribunal to adopt a less generous interpretation of the facts than those being promoted on behalf of the applicant.  The fact that other interpretations may be open does not alter the fact that the Tribunal’s interpretation was also available to it.  The Tribunal member’s mind does not require an absence of any predisposition or inclination for, or against, an argument or conclusion.  The examples noted in support of the applicant’s argument are again examples open to interpretation which could be viewed by persons other than the Tribunal member to be different and far less significant.  The obligation on the party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved.  No evidence has been submitted partisanship or hostility by the Tribunal other than required to carry out his inquisitorial role.  The nature of the issue of the alleged bias, I do not believe is supported by the issues identified from the Tribunal hearing or the impression formed by listening to the hearing tapes in the context of the entire hearing.

10. The second issue raised by the applicant concerning apprehended bias concerns the conduct of the hearing and Dr Azzi relies on NADH of 2001 where Allsop J (with whom the other members of the Full Court agreed) made the following observations.

    [115] By and large fact-finding is a task within jurisdiction, through factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehended that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of document as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.

    [116]In my view, at least these possibilities (real and not remote) would come to mind to such a fair-minded and informed observer.  The second possibility is the apprehension of possible bias.

    [117] The apprehension of this possibility of apprehended bias would be strengthened by certain other aspects of the conduct of the hearing and the balance of the reasoning process.

    [118] The hearing was marked by statements of the Tribunal cutting off the first appellant, demanding direct answers (on occasions when such could be seen to be in the course of being given) and reflecting a view in the Tribunal of very limited purpose of the hearing.  Taken alone, they are not sufficient to raise an apprehension of bias.  Taken in conjunction with the matters referred to earlier they strengthen the apprehension.

11. Dr Azzi submits that the manner in which the Tribunal conducted the hearing creates an apprehension of bias for reasons equivalent to those given by Allsop J in paragraph 118 above.  The apprehension arises from the recording of the hearing corresponding to the following sections of the Transcript:

    a)The Tribunal repeatedly interrupted the Applicant or interpreter mid-sentence (pages 5, 9 and 31).

    b)The Tribunal deliberately asked the Applicant incorrect and inflammatory questions (pages 11 and 28).

    c)The Tribunal asked long, convoluted, complex, bundled and discursive questions (for example pages 9, 14, 16, 20 and 21).

    d)The Tribunal did not accede to the Applicant’s reasonable request to repeat a question (page 10).

    e)The Tribunal confused the relationship of independence between it and the Department by referring to both as “us” (page 26).

12. Mr Reilly argues that the matters listed by the applicant above in paragraphs 72 and 73 do not indicate apprehended bias.  The Tribunal is obliged to act in an inquisitorial fashion (ex parte H at [30]) and its conduct of the hearing affects it doing so.  Nor does the fact that the Tribunal had concerns prior to the hearing and so expressed those concerns at the hearing amount to evidence of bias: Johnson v Johnson [2000] HCA 48 at [13]; Jia at [72] and [186].

13. The parties invited me to listen to the hearing tape to consider the question of apprehended bias arising from the conduct of the Tribunal hearing.  It is acknowledged that the Tribunal member in order to fulfil his obligation in an inquisitorial manner does ask the applicant questions in a vigorous and robust style at times when the applicant appears to be faltering or hesitant in his response.  However, this approach is not evident throughout the period of the hearing and appears only to be opted when the Tribunal member is forced to probe for answers from an evasive applicant.  An independent lay observer who was fully briefed and understood the function and role of the Tribunal member, I do not believe would form the view that the Tribunal member was displaying an attitude towards the applicant that he entered the hearing with a preconceived and finalised view of the applicant’s evidence.

14. Mr Reilly drew my attention to the fact that the Tribunal put six difficulties concerning the applicant’s evidence to him at the hearing.  These six issues were raised more than once and were put to the applicant at several different points during the hearing.  I acknowledge that a number of times the Tribunal had to interrupt the applicant.  However these interruptions were justified as the applicant simply was not answering the Tribunal’s questions with sufficient focus or detail.  It is open for the Tribunal to insist that the questions asked be answered.  Again, the fully instructed lay observer, I do not believe, would interpret the interruptions readdressing of the question to the applicant in the circumstance where the initial response from the applicant is clearly divergent from the question asked.

15. At the end of the Tribunal hearing the Tribunal gave the applicant an opportunity to submit further submissions and this was done on his behalf by a migration agent.  This provided the applicant with an opportunity to furnish the Tribunal with further detailed information regarding questions that the Tribunal had on specific issues.

Conclusion

1. Counsel for the applicant has provided the Court a very detailed examination of the issues in this matter.  However, I believe that in a number of circumstances the issue being argued is based on interpretation and emphasis of the evidence that is the responsibility of the Tribunal member carrying out his role in the inquisitorial manner that is required.  The interpretation being placed on these issues, I do not believe, can be maintained as errors submitted by the Tribunal member carrying out of his decision making function.  I do not believe that the grounds pleaded on behalf of the applicant can be sustained.  Consequently, the application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order the applicant pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date: 23 February 2006