FEDERAL COURT OF AUSTRALIA

Guden v Minister for Immigration & Multicultural Affairs [1999] FCA 908

IMMIGRATION – Refugees – Refugee Review Tribunal – Refusal of application for protection visa – Whether Tribunal applied rules or policies without regard to merits of particular case – Whether actual bias – Whether failure to object during hearing amounts to waiver of right to challenge decision on ground of bias ‑–Whether Tribunal failed to carry out its “review” function by not asking about particular aspects of the applicant’s story – Whether “no evidence” to justify Tribunal’s decision

Migration Act 1958 ss 414, 476(1)(d), (e), (f), (2)(c), (4)

Navaratne v The Minister (unreported, 1 August 1997, Tamberlin J) applied

Abalos v Australian Postal Commission (1990) 171 CLR 167 applied

Geng v The Minister [1998] 768 FCA applied

Sing v The Minister (unreported, 18 October 1996, Lockhart J) cited

Sun Ahan Qui v The Minister (1997) 151 ALR 505 applied

Vakauta v Kelly (1989) 167 CLR 568 applied

Ozberk v The Minister (1998) 79 FCR 249 cited

Doan v The Minister (unreported, 9 April 1997, Olney J) cited

MEHMET SERIF GUDEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 121 OF 1998

SUNDBERG J

5 JULY 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant arrived in Australia from Turkey on a visitor’s visa on 17 May 1997 accompanied by his wife and son.  They lodged an application for a protection visa on 2 July 1997.  A delegate of the Minister for Immigration refused their application.  They sought a review of the refusal by the Refugee Review Tribunal.  The Tribunal affirmed the delegate’s decision.  The present application is for a review of the Tribunal’s decision.

APPLICANT’S CASE BEFORE TRIBUNAL

2                     The applicant’s claim focussed on his Kurdish race, his affiliations with the political party HADEP, and his membership of a particular social group comprising wealthy Kurdish businessmen.  His wife’s case, apart from relying on the difficulties incident upon her husband’s situation, was that because she is ethnically Turkish and is married to a Kurd, her security and that of her child was threatened unless she left her husband.  It will be necessary to examine the applicant’s evidence in some detail later in these reasons, but in summary his story is that he was born and educated in Kurdish villages in Bitlis province in the south‑east of Turkey.  Bitlis itself is about 80 kilometres from the border with Iraq and about 200 kilometres from the border with Iran.  The applicant undertook military service in 1981 and 1982.  In 1989 he moved to Antalya, which is in the west of Turkey, about 1000 kilometres from Bitlis and about 400 kilometres south west of the capital, Ankara.  He established a building business which eventually employed ninety people.  The wife had a child‑minding business.  The applicant claimed that he became politically active in 1977‑1978, and attended meetings of the Republican People’s Party, which were often broken up by police and soldiers.  Because of his political activity he was arrested and tortured on three occasions.  After the 1980 coup he participated in politics in secret, but became more politically active after establishing his business in Antalya.  He had to provide new photographs of himself to the police each year or so because he was known as a political activist prior to 1980.

3                     In April/May 1993 the Kurdish village in which the applicant’s relatives lived was razed by government security forces.  The applicant brought the relatives to Antalya and accommodated them in his hotel.  As a result he was accused of assisting Kurdish terrorists and was detained and tortured.  In May 1996 the hotel was sprayed with bullets.  His complaint to a security agency was not fruitful.  The applicant says he started giving money to the People’s Labour Party (HEP) in 1993.  When HEP was banned, it re‑emerged as the Democracy Party (DEP), to which he also gave money.  DEP was banned, and was succeeded by the People’s Democratic Party (HADEP) which the applicant joined in 1994, he says under a false name.  During an election campaign in mid‑1994 he was caught distributing leaflets for HADEP and was detained and tortured.  His political journalist nephew was killed in September 1994.  The applicant was nominated as President of his local HADEP branch in November 1994 but declined the office because he was too busy.  Instead he became Vice‑President.  He conducted HADEP meetings at his hotel.

4                     The applicant said there were about five HADEP members of Parliament in prison, and another seventeen had fled the country.  He feared he would be targeted because of his knowledge of HADEP, and left the country after threats were made to kidnap his son.  The family went to Cyprus where they obtained Australian visitor visas and the wife and child obtained passports.  They returned to Antalya to finalise business arrangements.  On their return there were two cars waiting outside their house.  According to the applicant, the men in the cars demanded money.  He said he did not have any on him but would pay later.  The men went away.  The family then left for Australia.  Shortly after they arrived in Australia the applicant heard that two of his nephews had been detained by police.  He says they have not been seen since.  He believes they have been killed because they could not account for his whereabouts.  Because of his race, political activities and opinions and his position as a wealthy businessman, the applicant fears he will be detained, tortured and killed if he returns to Turkey.

THE TRIBUNAL’S REASONING

5                     No exception was taken to the Tribunal’s exposition of the law that has developed around the definition of “refugee” in the Convention.  The Tribunal accepted that the applicant is ethnically Kurdish and was born and raised in a predominantly Kurdish area.  It found that he moved to western Turkey in 1986.  His son was born in Izmir in that year.  Izmir is on the Aegean coast about 350 kilometres north‑west of Antalya.  The Tribunal noted that in Antalya the applicant was removed from the focus of the ongoing war between Turkish security forces and Kurdish separatists in the south‑east of the country where he had grown up.

6                     The Tribunal observed that in the applicant’s initial submissions, made when he applied for a protection visa in July 1997, he had made no claim to be politically active until he joined HADEP in 1994.  In a statutory declaration lodged with the Tribunal in December 1997, he claimed to have been politically active since 1977 or 1978.  The Tribunal did not accept this claim.  Nor did it accept that he was recorded as a person who was required to supply a photograph to the authorities every year because of his pre‑1980 political activity.  The Tribunal found that such a significant part of his history, if true, would not have been overlooked in setting out the core of his claims in his initial application.  It concluded that these aspects of his claims were fabricated after his initial application had been refused, in order to bolster his efforts to be recognised as a refugee.  The Tribunal said the fact that he had completed his military service in 1981‑1982 without suffering any adverse or discriminatory treatment was consistent with its conclusion.

7                     The Tribunal drew attention to differences between the applicant’s initial account that his hotel had been strafed in 1993 and the account in his statutory declaration that the event had occurred in May 1996.  The Tribunal did not believe the hotel had been shot at because the applicant had sheltered his relatives there.  But even if it had been, the initial account strongly indicated that the event occurred when the relatives moved in.  The Tribunal concluded that the applicant had later claimed that the event occurred in 1996, because he believed it would be difficult to explain why he had remained in the same place for a further four years despite being the target of attacks by the security forces.  The conclusion the Tribunal drew from this was that by 1997 the authorities had no interest in harming the applicant because relatives had stayed at his hotel, and there was no likelihood that he would be harmed on that account if he returned to Turkey.

8                     The Tribunal then dealt with a claim made in the applicant’s statutory declaration that his journalist cousin, Ferhat Tepe, had been killed in 1994.  Tepe was a newspaper correspondent for the south‑east region.  His body was discovered in an area where the bodies of people who had disappeared were often found.  In his oral evidence before the Tribunal the applicant said Tepe was a nephew, and acknowledged that there was a difference between a cousin and a nephew.  In any event, the Tribunal accepted that while Tepe may have been related to the applicant, nothing had ever happened to the applicant as a consequence of his relationship with Tepe, and any fears he harbours that he might be adversely affected on account of that relationship are groundless.  It did not believe a further claim by the applicant that he had “ghosted” articles for Tepe.  It considered that he had sought to exploit Tepe’s death by creating a link with him that never existed.

9                     The Tribunal turned to the applicant’s claims as to political activity.  It noted that in his statutory declaration he claimed to have joined HADEP in about June 1994, though he told the Tribunal he had joined in November 1994.  When the discrepancy was pointed out to him, he reverted to the mid‑1994 date.  Further, the Tribunal thought it implausible that a local businessman, who asserted that he stood for high office in a legal political party, would use an alias on joining HADEP, or could do so without being detected.  The Tribunal found that this part of the applicant’s claim had been invented to pre‑empt any attempt to check HADEP’s membership records for evidence of his membership.  The Tribunal noted that the applicant claimed to have been nominated for Presidency of his local branch of HADEP but only agreed to stand as Vice‑President.  It observed that the applicant’s claims to be an office holder were not made in his initial submission, and given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it was not credible that such information would have been overlooked in setting out the basis of his claim to be a refugee.

10                  The Tribunal again referred to the discrepancy between the dates on which the applicant claimed to have joined HADEP (June and November 1994).  Local elections were held in December 1994, yet the applicant in his statutory declaration, as affirmed in his oral evidence, claimed that the elections were held “not long after” he joined in June 1994.  The Tribunal referred to country information provided by the applicant which showed that in 1995 members of HADEP had been harassed and persecuted, though the applicant did not say he had been harassed despite his claim to having been elected to the second highest office in his branch a month before local elections.  The Tribunal did not accept that the applicant was a member or an office holder in HADEP, although he may have supported its cause.  The Tribunal regarded this conclusion as deriving support from the fact that the applicant claimed that Leyla Zana was a member of HADEP when in fact she had been imprisoned before its formation for espousing the Kurdish cause when she was elected a member of Parliament.  The Tribunal pointed this out to the applicant, whose explanation was that he had been confused between HEP, DEP and HADEP.  The Tribunal did not think it credible that an office holder in HADEP, which did not have any members of Parliament, would claim that Leyla Zana was a member of that party.

11                  The Tribunal turned to the applicant’s visit to Cyprus in March 1997 where his wife and child obtained passports and all three obtained Australian visitors visas.  The applicant’s passport had been renewed in Turkey earlier that year.  The Tribunal observed that the family returned to their home in Antalya, according to the applicant to finish some accounting or taxation business.  It said that despite both parents claiming that their child’s life was threatened, they returned home when they could have gone to Australia direct.  The Tribunal did not accept that the applicant would have returned to the place where he says he feared he and his family would be killed if his fears in that respect were genuine.  It thought his story had been invented.  The Tribunal also thought that the applicant’s account of being accosted outside his house was contrived.  The coincidence of the men in the two cars being at the house when the applicant returned from Cyprus was not consistent with the statutory declaration, which had the incident occurring some five weeks after the return.  The Tribunal thought that, in all the circumstances, the description of the demand for money and the men’s compliant departure when the applicant said he didn’t have any on him, was not credible.

12                  The Tribunal concluded its examination of the political activity claim by saying that the applicant had fabricated a story that he was a political activist and supporter of the Kurdish cause who attracted the adverse attention of the authorities in an attempt to gain recognition as a refugee.  It accepted that he may have made donations to political parties, but did not believe his claim that he was ever active in politics or that he was harmed for that reason.  In the Tribunal’s view the chance that he may suffer harm as a result of his political opinions if he were to be returned to Turkey was negligible.  The Tribunal then examined at length various reports on the situation in Turkey so far as it related to Kurds.  It noted Turkey’s unsatisfactory human rights record in relation to Kurdish nationalists, but concluded, by reference to material that it set out in its decision, that Kurds who merely assert their cultural identity do not face a real chance of persecution for that reason alone.  On the other hand, those who are politically active may, in some cases, be at risk, particularly if their activities are directed at support of Kurdish nationalism.

13                  The Tribunal concluded its discussion of the applicant’s political activity claim as follows:

“The applicant has not been politically active, although he may have made donations to HEP and DEP.  If he did, he remained in the country for three further years without attracting adverse attention.  He claimed that he was detained and tortured on several occasions, although his initial submission (apart from the disbelieved claim that his hotel was strafed because he assisted his relatives) indicates that he was harassed by having his car stopped and being questioned and insulted.  As with other evidence of significance, the claim to be detained and tortured was not made in initial submissions and is not believed.  In this respect, it is notable that his spouse gave no evidence that he was detained and tortured, although she said he would sometimes not come home at night and gave her no information when he returned the following day.  She did not suggest that he displayed any evidence that he had been tortured.”

14                  The Tribunal then noted that the applicant’s claim that two of his nephews (the Tribunal mistakenly called them brothers) had been “disappeared” did not appear in his initial application.  This claim was of such significance that the failure to mention it led the Tribunal to conclude that it had been contrived after the initial application had been refused.  The Tribunal concluded its decision as follows:

“[The applicant] has demonstrated a willingness to fabricate evidence in pursuit of his desire to remain in Australia.  It is understandable that he may wish to live in an environment that is more stable for his family than the air of insecurity that is prevalent in parts of Turkey, but the Tribunal finds that he has not been involved in political activities, nor has he been detained and mistreated for any convention reason.  Nor has he been involved in any activities, either in Turkey or Australia, that might suggest to the authorities that he is a supporter of left wing or separatist activities or politics.  There is no doubt that the Turkish authorities have an abysmal human rights record and that they relentlessly pursue people they suspect of being involved with opposition groups, particularly those related to the PKK and its efforts to gain autonomy for Kurds.  However, the applicant has neither been involved or suspect of involvement with such groups, nor has he been pursued by the government authorities for that reason.  He was able to leave the country without hindrance and whatever fears of persecution he harboured at that time were unfounded as there was not a real chance that those fears would be realised.  There have been no changes in his situation or the circumstances in Turkey to found a conclusion that he now faces a real chance of persecution if he returns.”

GROUNDS OF REVIEW

Rule or policy – s 476(1)(d) and (3)(a)

15                  The applicant claims that the Tribunal’s decision was an improper exercise of power in that it applied the following rules or policies without regard to the merits of his case:

·               that claims and statements made in an initial application for a protection visa (“the initial claim”) bind an applicant in relation to any subsequent claims

·               that the Tribunal would more readily accept the initial claim over any subsequent claims

·               that the Tribunal would not accept and would regard as implausible any explanation by an applicant of inconsistencies between claims or delays in making a claim

·               that any inconsistency between an applicant’s claims justified a finding that the applicant was not credible or had fabricated claims

·               that where material before the Tribunal was capable of founding several different inferences, the Tribunal would draw an inference unfavourable or unhelpful to an applicant’s case.

16                  As to the so‑called first rule or policy, the Tribunal did not bind the applicant to his initial claim to the exclusion of material in his statutory declaration, oral evidence or submissions.  The Tribunal had before it the initial claim, the statutory declaration and the oral evidence.  There were, in its view, significant matters that were not mentioned in the initial claim.  For example, it thought that the claim made in the statutory declaration that the applicant had been tortured on seven occasions was of such significance that, if true, it would have been mentioned in the initial claim.  That it had not been threw doubt on the veracity of the claim. The Tribunal did not thereby apply a rule that an applicant could not alter, expand or correct his story.  It acted in pursuit of its obligation to ascertain the truth.  It would not be performing its task if it blindly accepted any claim made by an applicant without testing it against such material as was available to it.  In cases such as the present, the Tribunal has no direct means of ascertaining the truth of a claim that an applicant was tortured in a foreign country.  In order to test the applicant’s claim, the Tribunal asked itself why it was that a matter of such importance was not at the forefront of the applicant’s case when he was first afforded the opportunity to present it.  I have used the torture incidents as the example, but what I have said applies also to the “disappeared” nephews, the pre‑HADEP political activity, and the applicant’s claim to have been an office holder in HADEP.

17                  What I have said about the first rule or policy applies to the second – that the Tribunal would more readily accept the initial claim over a later one.  The third rule or policy ‑ the implausibility of explanations of inconsistencies between different accounts ‑ is relevant to two aspects of the Tribunal’s decision.  The first was the explanation offered by the applicant for his mistaken claim that Leyla Zana, a member of Parliament, was a member of HADEP.  This was that he had become confused between HEP, DEP and HADEP.  The Tribunal did not accept the explanation.  It did not think it credible that an office holder in HADEP would claim that Zana was a member of HADEP when none of its members was in the Parliament.  The Tribunal did not apply a rule or policy requiring it to reject an explanation for an inconsistency.  The applicant has elevated a basis for an adverse finding of fact, namely that he was not an office holder in HADEP, into a pre‑existing rule or policy of general application requiring the Tribunal to reject explanations for inconsistencies between different accounts.  The other case in which an explanation may have been rejected relates to the year in which Tepe was killed – 1992 or 1994.  The explanation offered was that the applicant did not have an adviser when he made his initial explanation, and did not speak English.  It may be that this explanation was also offered in relation to the applicant’s claim that Tepe was his nephew rather than his cousin.  It is not clear whether the Tribunal rejected the explanation.  But if it did, nothing turned on it, for the Tribunal assumed that Tepe was related to the applicant, and went on to say that nothing had ever happened to the applicant as a consequence of his connection with Tepe, and that any fears he has that he may be harmed as a result of that connection are groundless.

18                  The fourth rule or policy ‑ that any inconsistency between claims justified a finding against an applicant ‑ has no basis.  On a number of occasions the Tribunal used an inconsistency to support a rejection of an aspect of the applicant’s story.  The applicant gave oral evidence and was questioned by the Tribunal.  The Tribunal’s findings of fact were based not only on its identification of inconsistencies in the applicant’s evidence, but upon its assessment of his demeanour and credibility.  On a number of occasions the Tribunal said that it did not believe the applicant.  The rejection of aspects of his story was not tied to the inconsistencies alone.  In Navaratne v The Minister (unreported, 1 August 1997) Tamberlin J said:

“The credibility of an applicant is largely a matter of impression.  There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act.  The oft‑cited remarks of the Court as to the “subtle influence of demeanour” are especially important in migration cases where many of an applicant’s assertions must be accepted at face value in the absence of any evidence to the contrary.  Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified.  For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision‑maker on credibility questions.”

I agree with his Honour’s observations.  It is true that the Tribunal did not speak of the applicant’s “demeanour”.  But in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 McHugh J, with whom the other justices agreed, observed that the fact that a trial judge makes no express reference to the demeanour of a witness does not mean that demeanour played no part in the judge’s findings.  It is clear from its reasons that the Tribunal was influenced in reaching its conclusion on credit by the oral evidence given by the applicant.  Thus it said it found unconvincing his various explanations for having omitted crucial aspects of his claim in his initial application.  This finding clearly relates to the applicant’s believability when proffering explanations for inconsistencies between his various statements when pressed about them in the course of his oral evidence.

19                  The final rule or policy is that the Tribunal would draw an inference against the applicant even when the evidence was capable of founding an inference favourable to him.  The submission accepts that the inferences the Tribunal drew were open to it, and complains that it should have drawn different but equally available inferences.  There is nothing in the material to support this complaint as a ground of review under s 476(3)(a).  It is simply an attack on the Tribunal’s decision on matters of fact.  It is a bold attack because, as I have said, it assumes that the inferences drawn by the Tribunal were open to it on the evidence.  Once again, the applicant has sought to dress up as a pre‑existing rule or policy what is merely a preference the Tribunal had for one view of the facts as opposed to another.

Actual bias – s 476(1)(f)

20                  Actual bias involves a pre‑existing state of mind which disables a decision‑maker from undertaking, or renders him unwilling to undertake, any or any proper evaluation of the relevant materials.  See Geng v The Minister [1998] 768 FCA.  The fact that a decision‑maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias.  There will be actual bias only when preliminary views are incapable of alteration.  Any particular matter relied on as showing actual bias must be considered in the context of the whole hearing.  It is not enough that the decision‑maker displays irritation or impatience or even uses sarcasm.  See Sing v The Minister (unreported, 18 October 1996, Lockhart J).  Actual bias is not confined to an intentional state of mind.  It may be unconscious, provided it is real.  However, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong‑headedness, whether in law, logic, or approach: Sun Ahan Qui v The Minister (1997) 151 ALR 505 at 555 per Burchett J.

21                  In support of his claim that the Tribunal had a “preconceived position and a fixed position so adverse that the applicant could not obtain a fair hearing”, the applicant essentially repeats the factual matters relied on in support of his rule or policy claim.  The fact that the Tribunal was critical of inconsistencies between the applicant’s various accounts does not show a pre‑existing state of mind disabling it from undertaking a proper evaluation of the material before it.  Nor does the drawing of adverse rather than favourable inferences.  It was said that the Tribunal failed to distinguish between material and immaterial inconsistencies, and that this showed a closed mind.  I do not accept the basis for the contention, which was not explored in argument.  Undoubtedly some of the inconsistencies were more significant than others.  But the Tribunal did not fail to acknowledge this.  For example, whether Tepe was killed in 1992 or 1994, and whether he was a nephew or a cousin, may not have been matters of great importance.  But the Tribunal did not treat them as if they were.  It merely noted the inconsistencies, and concluded that, whatever the date and whatever the relationship, nothing adverse had ever happened to the applicant as a result of any relationship he had with Tepe.  In any event, a failure to distinguish between material and immaterial inconsistencies, while it may perhaps be an error in logic or wrong‑headed, does not amount to bias.  See Sun at 555.  It was claimed that the fact that the Tribunal formed an adverse view of the applicant’s credibility, and disbelieved various parts of his story, showed bias.  Reference was made to the findings on arrest and torture.  It was not explained how this demonstrated a prejudgment of the case.  These were ultimate conclusions on matters of fact.  The bias that must be shown is something anterior to such a decision.

22                  The applicant relied on four observations made by the Tribunal in the course of the proceedings.  The first two arose when the applicant’s solicitor, Mr Fisher, was addressing the Tribunal.  He told the Tribunal that the applicant did not have a professional interpreter to help him complete the initial application, and that the applicant’s English was poor.  The Tribunal member replied:

“I always find it difficult when other people are blamed.  It is always – always their claim is, ‘My English is no good and I didn’t have a representative’.  Or, ‘I don’t think I had any representative to say what’s on my mind’.”

After Mr Fisher responded that the applicant should not be held responsible for what someone else has put in his application form, the Tribunal agreed, and said that it would take what Mr Fisher said into account in coming to its decision.  The applicant then interjected, saying “I didn’t accuse anyone …”, but did not finish the sentence.  The context suggests that he meant to convey that he was not accusing the friend who helped him fill out his application of doing anything wrong.  The Tribunal then repeated to the applicant the substance of what it had earlier said to Mr Fisher – that it was not very convincing to be told that all the inconsistencies were the result of faulty interpretation or poor English.

23                  The third observation occurred when the Tribunal asked about the discrepancy between the dates on which it was said that Tepe had been killed.  The applicant blamed those who helped him fill in the initial application form for the wrong date.  The Tribunal then said, on the unofficial version of the transcript provided to me:

“So I’m not often persuaded by people explaining away mistakes by blaming other people.”

The official transcript records this comment in a different form.  The context suggests that the unofficial version is more accurate.  The final observation occurred after the applicant had spoken about the strafing of the hotel, the PKK demands for money, and his two trips to Cyprus.  The Tribunal said:

“Doesn’t sound very much like a refugee story.  If somebody comes along with a machine gun and shoots at your house, you then wait for a year, you then say you flee because you think you are going to be persecuted, and you got to Cyprus and you go back to tie up some accountancy issues, and pay your tax to the people who are persecuting you, and meet your persecutors and tell them to go away because you have not got any money now and you will pay them later, is a very far‑fetched story.”

24                  The first two observations can be taken together.  Having said that it found it difficult when other people were blamed, the Tribunal accepted Mr Fisher’s submission that the applicant should not be held responsible for what someone else had written down, and said it would take the matter he raised into account in coming to its decision.  There was no prejudgment or closing of the mind, since the Tribunal said it would take Mr Fisher’s submission into account.  The third observation is to the same effect as the others.  Again, there is no closing of the mind.  The Tribunal does not express a concluded view.  By use of the words “I’m not often persuaded …” it allows that it may be persuaded in an appropriate case, and it later said it would take Mr Fisher’s submission into account.  The final observation amounts to no more than a flagging of what the Tribunal regarded as a weakness in the applicant’s case, so that he could deal with it.  Indeed that is what the applicant then did, with a view to disabusing the Tribunal of its concerns about his case.  For those reasons, I do not regard the Tribunal’s observations, whether considered individually or together, as showing actual bias.

25                  The applicant was represented by Mr Fisher, who made no complaint about the Tribunal’s observations, thereby confirming that they did not amount to prejudgment but were indicators of the Tribunal’s concerns which needed to be addressed.  In Vakauta v Kelly (1989) 167 CLR 568 the trial judge had made remarks about medical witnesses which the unsuccessful defendant, who was represented at the trial, claimed amounted to ostensible bias.  The defendant’s counsel did not object to the remarks or make any application about them.  The High Court sustained the bias claim, but held that by not objecting to the judge’s remarks the defendant had waived any right to appeal on that ground.  Toohey J, with whom Brennan, Deane and Gaudron JJ agreed, said (at 587‑588):

“When a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased.  It was suggested during argument that this situation may be one, not of waiver, but of estoppel ….  Notwithstanding the difficulties that do arise from time to time in distinguishing between waiver and estoppel, the situation here is more akin to the former than to the latter.  Waiver involves a decision by the party against whose case bias is shown to raise no objection.  … The situation is one in which the law prevents a party to litigation from taking up two inconsistent positions; he is held to his election.  While, of course, the community has an interest in knowing that cases are decided impartially, that interest is not affected adversely by a doctrine which refuses a party to litigation the opportunity to resile from a position he has taken.  The appellant should be held to have waived any entitlement to challenge what was said by his Honour during the hearing.”

Dawson J, who dissented on bias, said that had he agreed with the majority on that point, he would have held that the right to complain had been waived.  His Honour said (at 577‑578):

“had the objection been open, the course taken [by counsel] did, I think, amount to a waiver of it.  No objection was taken to the continuation of the trial before his Honour, either formally or in effect.  …  It cannot be the position that a party can wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the ground of bias.”

If, contrary to my view, the Tribunal’s observations during the hearing amounted to actual bias, the failure of the applicant’s solicitor to object to the remarks constitutes a waiver of the right to impugn the decision on that ground.

Error of law – s 476(1)(e)

26                  It was contended that the Tribunal made an error of law in that it had incorrectly interpreted s 414(1) of the Act.  That section requires the Tribunal to “review” an RRT‑reviewable decision for which a valid application for review has been made.  It was said that the Tribunal had failed to carry out its review function in that it did not question the applicant concerning his claims to have been tortured, and refused to take evidence from his wife about the bullets fired at the hotel.  I do not regard either of these complaints, if established, as constituting an incorrect interpretation of s 414(1).  In any event, the Tribunal was under no obligation to question the applicant about his torture allegations.  He was represented by a solicitor, and the Tribunal afforded Mr Fisher the opportunity to ask any questions he wanted to ask.  Mr Fisher did ask questions, but not about the torture claims.  In those circumstances there was no obligation on the Tribunal to run the applicant’s case for him when his solicitor chose not to pursue a particular issue.

27                  Mr Fisher asked the Tribunal to question the applicant’s wife about the details of the strafing – what side of the hotel was shot at and where the shots hit.  He told the Tribunal he wanted these questions asked because he sensed that it doubted the applicant’s claim about strafing.  The Tribunal declined to question the wife on the point.  The applicant asserted that notwithstanding this refusal the Tribunal found against him on this issue.  That is not so.  The Tribunal accepted that the hotel had been strafed.  What it rejected was that it was attacked because the applicant housed his relatives there, and that the incident occurred in 1996 rather than in 1993.  Nothing turned on the Tribunal’s refusal to allow questioning of the wife as to the details of the strafing.  The questions Mr Fisher wanted asked were not directed to the reason for the strafing or its date.

No evidence – s 476(1)(g)

28                  It was contended that there was no evidence to justify the Tribunal’s decision in three respects:

·               that the applicant had adequate assistance in preparing his initial application

·               that there was an inconsistency between the claim that Tepe was a cousin and the claim that he was a nephew

·               that the applicant had fabricated certain aspects of his evidence

·               that Leyla Zana was a member of HADEP.

29                  The first of these contentions can be shortly disposed of.  The Tribunal made no finding to that effect.  As I understood the argument in relation to the second claim, it was that there was in fact no difference in Turkish between a nephew and a cousin, and there was accordingly no evidence to substantiate the Tribunal’s conclusion that the applicant’s claims about his relationship with Tepe were inconsistent.  I need not examine all the difficulties in this claim, including the problem as to the admissibility of the fresh evidence upon which it is dependent, as to which see Ozberk v The Minister (1998) 79 FCR 249.  That is because the Tribunal did not make the finding for which it is asserted there was no evidence.  As I have said elsewhere, the Tribunal assumed that Tepe was related to the applicant, but found that nothing had ever happened to the applicant as a consequence of the relationship, and that any fears he harboured that he may be adversely affected by that relationship are groundless.  Further, even if what the Tribunal said did amount to a finding of inconsistency, and there was no evidence to support it because nephew and cousin are interchangeable terms, the case does not fall within either limb of s 476(4).  Paragraph (a) does not apply.  Nor does par (b) – the decision that the applicant was not a person to whom Australia had protection obligations was not based on the fact that there is a difference between a nephew and a cousin.

30                  The third contention ‑ the absence of evidence for the Tribunal’s conclusion that the applicant fabricated parts of his evidence ‑ does not fall within s 476(4)(a) or (b).  The Tribunal’s findings were based on listening to and observing the applicant as he gave his evidence in the light of the inconsistencies between the various parts of his evidence.  The Tribunal’s disbelief of the applicant is not a “particular matter” within par (a) or a “particular fact” within par (b).  Cf Doan v The Minister (unreported, 9 April 1997, Olney J).

The fourth contention is entirely without merit.  It was submitted that the Tribunal based its decision as to the applicant’s political involvement and as to his credibility in large part on its finding that the applicant claimed that Leyla Zana was a member of HADEP when in fact she was imprisoned before its inception, and that it was not credible that an office‑holder in HADEP, which did not have any members in Parliament, would claim she was a member of that party.  It was said that nowhere in the oral evidence was it stated that Zana was a member of HADEP.  That is true.  However in his statutory declaration the applicant stated that Zana was a member of HADEP, a member of Parliament, and in prison.

CONCLUSION

31                  The applicant’s wife and child were not the subject of separate submissions.  It was accepted that their cases were dependent on that of the applicant.  The application must be dismissed with costs.

Associate:

Dated:              5 July 1999