FEDERAL COURT OF AUSTRALIA

Khalili Vahed v Minister for Immigration & Multicultural Affairs

[2001] FCA 1404

HAMID REZA KHALILI VAHED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S33 of 2001

FINN J

ADELAIDE

4 OCTOBER 2001

THE COURT ORDERS THAT:

            1.         The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant, Hamid Reza Khalili Vahed, is an Iranian who has had his application under the Migration Act 1958 (Cth) (“the Act”) for a protection visa refused by the Refugee Review Tribunal.  The grounds of his application related to his homosexuality, and to the treatment in Iran of homosexuals and of homosexual activity.

2                     While the Tribunal accepted that Mr Khalili Vahed was a homosexual (though expressing doubts in this regard), it found significant aspects of his evidence to be internally inconsistent and inconsistent with the independent evidence.  It did not consider the applicant to be a credible or reliable witness.

3                     The application to this Court focuses on quite discrete matters.  For this reason it is unnecessary to provide a general account of the claims made, the evidence and the Tribunal’s reasons.  To the extent necessary these will be mentioned in the context of each individual challenge made to the Tribunal’s decision in this proceeding.

The Application

4                     As put in submissions the challenges made are of three varieties.  The first challenges four separate findings made by the Tribunal, though not all on the same grounds.  The second, impugns a refusal of the Tribunal to give weight to supposedly corroborative evidence if it was obtained by the applicant.  The third challenges the decision on the grounds of actual bias.

5                     I indicated at the hearing – the applicant was legally represented – that the first two varieties of challenge have little substance.  They can be dealt with shortly.

The Challenges to Fact Finding

6                     The first two findings to which I will refer are impugned, first, on the “no evidence” ground of s 476(1)(g) of the Act as contrived by s 476(4);  and secondly, by way of extension of what was said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [80]-[84] in relation to “jurisdictional error”.

Finding 1

7                     The applicant claimed he was a hairdresser;  that he did women’s hair on occasion at their homes;  and that he was detained for three days and beaten because he did this.  The Tribunal’s finding on this was in the following terms:

“I accept that the applicant is a hairdresser and that he was employed at the same salon for a period of some ten years prior to his departure from Iran.  However, I do not accept that he was detained for three days because he had done women’s hair.  Firstly, Mr Khalili Vahed did not mention this incident when he was interviewed upon arrival in Australia.  Secondly, I consider it highly implausible that women who were not related to Mr Khalili Vahed would risk having him come to their house to do their hair, when they could have their hair done by a female hairdresser.  Mr Khalili Vahed claimed that he was a highly skilled hairdresser who had particular expertise in doing short hair.  However, I consider it implausible that a hairdresser whose training and experience was in cutting men’s hair would be considered so skilled that it would be worth the risk of having an unrelated man come to their home to perform such a personal service.  Thirdly, if Mr Khalili Vahed were cutting women’s hair, I consider it implausible that he would arrange to have women phone him at his place of employment in order to make appointments.  Fourthly, in his application for a protection visa, Mr Khalili Vahed claimed that he stopped doing women’s hair after he was released from detention.  However, at the hearing, Mr Khalili Vahed indicated that he had not ceased doing so.  When I pointed out this inconsistency, Mr Khalili Vahed claimed that he continued to do his relatives’ hair.”

8                     The hairdresser finding apart, these findings, it should be noted, were not as to the existence of facts.  Rather they were that factual assertions were not made out.  As Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 “[a] decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion … is not made out”.

9                     Here the manner in which the Tribunal made its finding and the reasoning process relied upon to support it are clearly unobjectionable on any basis of judicial review that is founded on no evidence to support the finding.  I reject the applicant’s contention.

Finding 2

10                  Mr Khalili Vahed claimed before the Tribunal that he was at risk of being arrested for his homosexual activities because the authorities raided a party at his friend’s house where homosexual parties had been held over the preceding year.

11                  The Tribunal again did not accept this claim.  It was not mentioned in his interview when he came to Australia and it was inconsistent with the independent evidence.

12                  Whether or not the Tribunal’s reasoning was questionable in this:  Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257;  the rejection of the finding is unassailable for the reasons I gave in relation to the challenge to the previous finding.

Finding 3

13                  The applicant claimed that he obtained a photo-substituted passport which he used to depart Iran.  The Tribunal’s finding in respect of this was:

“I am of the view that Mr Khalili Vahed fabricated this claim in an attempt to create for himself the profile of a refugee.  In the circumstances, I am not satisfied that the Iranian authorities had any adverse interest in Mr Khalili Vahed at the time he left Iran, or that they have any adverse interest in him currently.  As I do not accept that Mr Khalili Vahed was of any interest to the Iranian authorities at the time he left Iran, I am not satisfied that he left Iran using a photo-substituted passport.  I am of the view that Mr Khalili Vahed left Iran using a passport in his own name.”

14                  The finding is challenged on the basis both that there was no evidence to support that he left Iran on his own passport and that the s 430 reasons statement did not record the evidence on which it is based.  The latter basis of challenge cannot survive the decision in Yusuf’s case at [77] and was faintly pursued.  The former misconceives the finding made.  The reference to leaving Iran on his own passport was simply a logical deduction from the primary finding (for which reason was given) that rejected his claim that he obtained a photo-substituted passport.

Finding 4

15                  The Tribunal considered that it was not unreasonable to expect Mr Khalili Vahed to continue to be discreet (as he was in the past) in his homosexual relationships.  In such case, in light of the country evidence, the chance of his facing persecution in Iran because he is a homosexual was remote and insubstantial.  This finding is challenged on the basis that, in light of the raid claim and of his photograph being published in a newspaper following riots at Woomera, there is no evidence that he would be able to be discreet if he was returned to Iran.  This submission misconceives the issue to which the notion of discretion is directed.  It relates to the practice of a homosexual lifestyle.  It was clearly open to the Tribunal to find on the evidence that he could avoid persecution by being discreet consistent with the practice of a homosexual lifestyle as in the past:  see Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211 at [25]ff;  F v Minister for Immigration and Multicultural Affairs [1999] FCA 947 at [13]ff.  Such notoriety as he may have acquired has no necessary bearing on that lifestyle if practised discreetly.  I would note that the notion of “discretion” needs to be considered in light of the proof requirement under the Iranian Penal Code if a prosecution is to be brought on account of homosexual activity.  It is unnecessary to enlarge on this here.

Rejecting Possibly Corroborative Evidence

16                  The Tribunal dealt with a suggestion in the submission made by the applicant’s adviser in the following way:

“I note Dr Al Jabiri’s submission that Mr Khalili Vahed’s father could possibly provide a statutory declaration confirming his son’s evidence.  However, in my view it would be a relatively straightforward matter for Mr Khalili Vahed to contrive such a statement, either by giving his father instructions in relation to what he should write, or by arranging for someone else to send a statement and then claiming that the statement had come from his father.  As I cannot place any weight on Mr Khalili Vahed’s own evidence concerning the alleged raid on the party and the arrest of his friends, I do not accept that a statement such as that posited by Dr Al Jabiri would be of any assistance to me.”

17                  The challenge to this finding was based on a “jurisdictional error” of the types suggested in Yusuf’s case, above, at [80]-[84].  Suffice it to say that whatever the criticisms properly to be made of the form of pre-judgment evidenced in the above finding, the suggested link with the principles of Yusuf’s case were in effect conceded by counsel to be illusory.  In particular it could not properly be said that the Tribunal had “ignored relevant material”.

18                  Anticipating such a conclusion counsel submitted that the finding was relied upon principally in support of the claim of actual bias.

The Bias Claim

19                  The form of actual bias alleged by the applicant is that the Tribunal had pre-judged his case.  As Gleeson CJ and Gummow J indicated in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 178 ALR 421 at [72]:

“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

20                  There is no contest between the parties as to the principles to be applied.  Further, the applicant accepts that a prejudgment claim is one that should not lightly be made and will not lightly be found:  H v Minister for Immigration and Multicultural Affairs [2000] FCA 180 at [9].

21                  Because of their immediate significance to the present matter it is appropriate to refer additionally to observations made by the Full Court in “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 at [20]:

“It is apparent, as the observations of Lockhart J in Singh make clear, that the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias.  In Sun Zhan Qui [v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71] at 123 Wilcox J stated that “There will be actual bias only when preliminary views are incapable of alteration.”  Determining whether actual bias has been shown must be done in the context of the hearing as a whole, and including all the material before the decision-maker.  It will often be the case that the material before the decision-maker gives rise to preliminary views about the merits of the application under consideration, or some aspects of it.  It is appropriate in those circumstances for the decision-maker to draw to the attention of the person seeking the decision, or its review, those views and to invite comment or a response upon them.  In many instances, it would be remiss of the decision-maker not to do so.  The decision-maker must, of course, remain willing to be persuaded that such preliminary views should be departed from in light of the response, and any other relevant information.”

22                  In the present matter the applicant was put on notice prior to the Tribunal hearing that his credibility could have bearing on the decision arrived at.  A s 424A notice had informed him that (inter alia):

“The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a Protection Visa.

The information is as follows:

When you were interviewed upon arrival in Australia you did not indicate that you were homosexual, that the Iranian authorities wanted to arrest you for this reason or that you had previously been detained because you used to do women’s hair.

This information is relevant because it affects the credibility of your claims.

You are invited to comment on this information.  Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.”

23                  At the Tribunal hearing, an unofficial transcript of which has been put in evidence, the Tribunal member after indicating the course the hearing would take, informed the applicant generally that she would give him an opportunity to comment on any information she had that did not support his case.  After explaining the components in the definition of the refugee, she then indicated directly that (omitting references to translation):

“Now having considered the information which is in set out in your file from the Department of Immigration and which included listening to the tapes of your interviews with the Department I could not be satisfied that the definition of a refugee applies to you.

And that is why I’ve asked you to come to the hearing today.

Having the hearing gives me the opportunity to talk to you directly about your claims and to get enough information for me to be able to make a decision on your case.

To get the information that I need I’ll be asking you some questions.

You will also have an opportunity to tell me anything additional that you think is relevant to your claims.”

24                  A considerable part of the lengthy interview was directed at eliciting information about those matters which were the subject matter of the non-disclosed material referred to in the s 424A notice.

25                  Pages 9 to 18 of the transcript relate to the member’s questioning about, and the applicant’s account of, his hairdressing work particularly as it related to women’s hairdressing, to how this came to the authorities’ attention and to the applicant’s conduct after his alleged detention.  The member’s questioning in this betrayed some scepticism on particular matters seemingly so as to invite further explanation from the applicant, as, for example:

“Tribunal:

I can understand you doing the hair of relatives for example, but why would a women [sic] who wasn’t related to you take the risk of having a man come to her house to do her hair when she could just as easily get a female hairdresser to do her hair. 

Applicant:

It was because of my reputation as a very skilful hairdresser and because I was very much renown because of where I was working and also because men are much better skilled to handle short hair of the ladies than women for instance and I mostly did for my relatives and the other whom I did also as well they were very close acquaintances.

Tribunal:

I am not sure why you would be better skilled doing women’s hair rather than a female hairdresser given that your training would not have involved doing women’s hair?

Applicant:

You are right in what you are saying but I wanted to extend my experience … .”

It likewise exhibited persistence which I consider to have been both fair and necessary in pursuing particular matters, as, for example, how the applicant came to the authorities’ attention for doing women’s hair.  At the end of the hairdressing evidence the member indicated to the applicant that she had “difficulty believing that any part of what you have been telling me about [his continuing to do women’s hairdressing after his detention] is actually true”.  The member indicated her reasons and in this re-emphasised what she had earlier put to the applicant that in his application for a protection visa he stated that after his release he stopped doing that work.  The applicant was, though, invited to tell the member anything more he wished to about the matter.

26                  Such complaint as the applicant makes in the actual bias claim about the above sequence relating to hairdressing is that the Tribunal did not accept his evidence when there was no evidence to the contrary.  I would merely note that it was properly open to the Tribunal to reject factual assertions:  see Selvadurai v Minister for Immigration and Multicultural Affairs (1994), above, at 348;  and that the sequence I have described though demonstrating clearly the credibility concerns which were there from the outset, is quite bereft of matter suggesting actual bias on the member’s part.

27                  The next issue of significance dealt with related to the applicant’s homosexuality (Transcript pp 18-30).  It demonstrated a similar type of questioning (persistence, scepticism, etc) as in that relating to hairdressing considered above.  I do not consider unfairness is revealed let alone prejudgment though it probably is the case that aspects of the applicant’s evidence in relation to his practices may have been considered distasteful.  The applicant showed some resistance to the member’s persistence in pursuing questions as the following exchange illustrates but, given earlier experience in the interview, the insistence of the member was quite justified.  Having previously asked the applicant how he got his passport and having received a non-responsive answer that was a continuation of what he had previously been recounting, the Tribunal asked:

“I asked you how you obtained your passport.

Applicant:

I want to continue, but because I don’t want to leave anything so I speak in detail and I realise what the question is, but what I would like to do is to give the full detail but she also wants me to also have holes.

Tribunal:

What I would like you to do is listen carefully to the question I that I am asking you, and answer that question.  If I need any additional details I will ask you for those.  OK please just tell me how you got your passport.”

28                  The applicant’s coming to Australia and his initial interview on arrival were next considered at the hearing.  In this context the Tribunal raised its s 424A notice;  it indicated it had difficulties with the applicant’s explanation of his failure to mention his fear of arrest in Iran;  it particularised why this was so;  and asked “Can you see why, given all of that, I might have difficulty in believing anything you have told me is true?”  The applicant’s responses then turned to alleged inaccuracy in the interpreting of the first interview.  The Tribunal indicated that it would have the tape interpreted again when it returned to Sydney.  It indicated in its reasons that it had done this, but that while the new translation gave some support to the applicant’s account of what he claimed he said, it equally confirmed as well what he was alleged to have said at the first interview.  The evidence in question (relating to having “relationships with the opposite sex” and “to talking to people of the same sex”) as enlarged upon at the hearing clearly had some bearing on whether he disclosed his homosexuality and his consequential fear of arrest at the first interview.  At the Tribunal hearing the best he could suggest was that he said he did not want to have relationships with the opposite sex from which it was implicit that he would be persecuted (for homosexuality) were he to return to Iran.  The Tribunal’s treatment of this issue and of its significance to his claim for refugee status was in my view not such as to show a closed mind.  On the crucial issue of credibility his own evidence failed him.

29                  It is alleged that the Tribunal cut the applicant off when giving evidence and that it denied him a real opportunity to explain his position.  While the Tribunal did interrupt the applicant and while it sought on occasion to make answers responsive, I do not consider that, reasonably considered, the transcript betrays unfairness let alone actual bias in the ways suggested.

30                  The final matter relied upon by the applicant relates to the Tribunal’s pre-judgment of the genuineness of any documentary evidence that it was suggested might be obtained from the applicant’s father.  The view expressed in its reasons was categorical and for that reason unfortunate.  It did indicate that it regarded the applicant as a tainted source of evidence.  Set in the context of the application as a whole and of the interviews given, I cannot say that the scepticism expressed was not one reasonably open to the Tribunal given the extent of the evidence that cast doubt on the applicant’s credibility.  I am not prepared to infer that had any documentary evidence been procured whatever its form and provenance – and the applicant had the opportunity to procure further evidence – it would not have been considered in its own right, albeit with real suspicion for the reasons the Tribunal gave.

31                  I would have to say in fairness to the Tribunal that the interview was, in my view, conducted fairly in all the circumstances.  A searching examination was called for and if it was discomforting for the applicant the cloud over his own credibility was the cause of this.  The claim of actual bias is without substance.

32                  The order of the Court will be that the application be dismissed.

Associate:

Dated:              4 October 2001