SGJB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1601

FEDERAL COURT OF AUSTRALIA

MIGRATION – whether there was a denial of procedural fairness – whether the Tribunal failed to consider submissions of the applicant’s migration agent – whether the Tribunal failed to consider whether the applicant had a well-founded fear of persecution rather than being subjected to mere discrimination - actual bias.

Migration Act 1958 (Cth), ss 426(3), 474

Annetts v McCann (1990) 170 CLR 596 at 598 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2002) 185 ALR 489 referred to

NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 referred to

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 referred to

Kioa v West (1985) 159 CLR 550 referred to

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82referred to

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 followed

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 applied

SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 referred to

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 followed

SGJB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S192 of 2002

SYDNEY (HEARD IN ADELAIDE)

19 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 192 of 2002

BETWEEN:	SGJB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	19 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1 The decision of the Refugee Review Tribunal of 31 July 2002 be set aside.

2 The application be remitted to the Refugee Review Tribunal for further consideration according to law.

3 The respondent is to pay the applicant’s costs of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 192 of 2002

BETWEEN:

SGJB

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & INDIGENOUS

RESPONDENT

JUDGE:	JACOBSON J
DATE:	19 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

4 This is an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 31 July 2002 (“the Second Decision”) affirming a decision of a delegate not to grant the applicant a protection visa.

5 The matter has been before the RRT on two occasions. The applicant lodged an application for a protection visa on 23 April 2001. The application was refused by the delegate on 5 June 2001. The applicant then sought a review by the RRT. On 27 August 2001, the RRT affirmed the decision of the delegate (“the First Decision”).

6 The applicant sought an order of review of the First Decision in an application filed on 5 September 2001. On 17 June 2002, O’Loughlin J granted the application and remitted the matter to the RRT for further consideration according to law.

7 The First Decision was given before the amendments to the Migration Act 1958 (Cth) (“the Act”) which came into force in 2 October 2001. The Second Decision was given after the amendments and is therefore a privative clause decision within the meaning of s 474(2) of the Act.

Claims and Background Facts

8 The applicant is a 24 year old Iranian man from the town of Ahwaz in the Province of Khuzistan. He is of the Sabian Mandaean faith. Sabian Mandaeans are variously described as “Sabians”, “Mandaeans” and “Sobbis”. I will refer to the religion as “Sabian”.

9 Sabians are a very small religious group. Their numbers are put at somewhere between 5,000 and 25,000. Many of them live in Ahwaz.

10 The applicant claims to have a well-founded fear of persecution on religious and ethnic grounds. His claim for protection before the delegate and in both the applications before the RRT was conducted on two levels.

11 The first was that, as a Sabian, he fears persecution by the Muslim majority in Iran. This was supported by evidence of a number of examples of discrimination against the applicant and his family as well as by country information. The country information was contained in a lengthy submission filed by the applicant’s migration agents, Messrs Macpherson & Kelley (“M & K”).

12 There was also evidence before the RRT at the second hearing from Father Monaghan of the Woomera-Roxby Downs Catholic Parish and from Sister Higgins of that parish which dealt with serious discrimination which they had observed at the Woomera Detention Centre where the applicant is detained. This evidence was said to indicate the sort of harassment and persecution to which Sabians are exposed by some members of the Muslim majority in Iran.

13 The second level at which the application for review was conducted was that the applicant claimed that he had a Muslim girlfriend in Iran and that he feared persecution at the hands of her family if he returns to Iran. It was this fear which he said prompted him to flee his country.

14 In answer to a question as to why he left Iran, the applicant stated in his arrival interview:-

“I am from a minority religious group (Sabian). I had a Muslim girlfriend. We were contemplating marriage. My religion was an obstacle. Her family found out. The family were outraged saying that Sabian were ‘not clean’ being involved with their daughter. This was humiliation for the family. To remedy this they said both should die. Who said both should die? Her father and brother. Her brother threw her from the balcony (2 ½ m) – she broke her hip. When? 3 weeks before I departed Iran. Before this my girlfriend warned me about her family. She said I should leave the town. I went home and told my family. I left my family home and stayed with my uncle.

Then my girlfriend’s family (her father and 3 brothers) went to my home and beat up my mother.

I said to my uncle that I had to leave. We found a smuggler and I left.”

15 With one exception, the applicant made precisely the same claim before the delegate and in both of his applications to the RRT. The exception was that he told the delegate and the RRT that his mother and his brother had been beaten by his girlfriend’s family whereas at his arrival interview, he did not mention the assault on his brother.

The First Decision

16 The applicant’s claims at the first hearing before the RRT were as follows:-

When he was seven years old, his father had a heart attack and he was denied medical treatment because, being a Sabian, he was regarded as unclean.

His tertiary education was restricted (although he was educated to year 12) and his mother withdrew his sister from school at year 9 because she was pressured by school authorities to convert to Islam.

He suffered discrimination in employment and, in common with many other Sabians, was able to follow only the occupation of running a gold and jewellery business.

He and other Sabians were persecuted in the exercise of their faith, particularly on Muslim holy days. The acts of persecution were said to include breaking windows, dumping rubbish and urinating outside his family home.

As a Sabian, he is regarded in Iran as impure and is not allowed to touch anything that Muslims would also handle, in particular, food.

The applicant also gave evidence of the clandestine relationship with his Muslim girlfriend to which I have already referred.

17 The RRT did not accept that medical treatment was not available to the applicant’s father. It said:-

“There is no independent evidence to suggest that Sabian Mandeans are denied medical treatment. The Tribunal notes that the applicant was aged only seven years when his father was taken to hospital after suffering a heart attack. The fact that his father was actually taken to hospital for treatment suggests there was no pattern of denying treatment to Sabian Mandeans.”

18 The RRT accepted that the applicant encountered some discrimination in education and that his religion may have been an important factor in denying him entry to university. However, it found that this did not amount to persecution.

19 The RRT accepted that the applicant’s sister came under some pressure to convert to Islam but said that the applicant was not subject to the same pressure and retained his religious faith.

20 The RRT noted that the applicant was able to obtain remunerative employment in the private sector and found that he did not encounter discrimination in employment which amounted to persecution.

21 As to the claim that the applicant and other members of his faith were persecuted, including the claim that Sabians are considered to be impure, the RRT accepted that the applicant had been subject to some discrimination and objectionable behaviour by “certain Muslims”. However, the RRT found that this did not amount to persecution.

22 The RRT found that there were a number of improbabilities in the applicant’s claim of his relationship with his Muslim girlfriend and of its violent consequences. The RRT did not find the claim to be credible and found that the story had been fabricated.

23 The RRT referred to three items of country information about Sabians. The first was a DFAT document dated 26 February 2001. It stated that, to the best of DFAT’s knowledge, there was no “systemic basis for harassment or persecution” of Sabians. It said that the extent of harassment was difficult to ascertain because it was confined to the remote province of Khuzistan. However, as O’Loughlin J noted at [10], there is implicit in this an acknowledgment that the Sabians are harassed in Khuzistan Province and the RRT seems to have overlooked that the applicant lived in that province.

24 The second item of information was the DFAT report dated 21 November 2000. It stated that the Sabians seemed to be allowed to perform some religious ceremonies largely unhindered, so long as they observed Muslim sensitivities.

25 The third item was the United States of America Department of State country report on Human Rights’ Practices 2000. The effect of this document is that religious minorities in Iran suffer discrimination. Reference was made to Christians, Jews and Bahai’s. Sabians were not named but it seems clear enough that the following passage included them:-

“Religious minorities suffer discrimination in the legal system, receiving lower awards in injury and death lawsuits, and incurring heavier punishments than Muslims. Muslim men are free to marry non-Muslim women, but the opposite does not apply. Marriages between Muslim women and non-Muslim men are not recognized …”

26 The RRT said that, in assessing all the available evidence, it concluded that the applicant suffered “isolated acts of discrimination falling short of persecution”.

The Decision of O’Loughlin J

27 Mr G F Barrett QC, who appeared as pro bono counsel before me, also appeared for the applicant before his Honour.

28 Mr Barrett challenged the First Decision before O’Loughlin J upon the ground that the RRT failed to address the submissions made in writing by M & K and, in particular, that the RRT omitted to make reference to extracts of country information set out at [16] of his Honour’s judgment.

29 Those extracts were said to support a finding that Sabians are persecuted although, as his Honour noted, at [17], that question could not be determined by the Court and would be a task for the RRT.

30 Mr Barrett also submitted that the “range of improbabilities” which the RRT found in the applicant’s claim about his relationship with his Muslim girlfriend were illogical. Mr Barrett challenged each of the “improbabilities” and said that, cumulatively, they became an error of law; see at [20] to [21].

31 His Honour said at [22]:-

“Athough I do not accept that the Tribunal’s findings about the applicant’s relationship with his girlfriend were illogical, I do believe that the Tribunal ignored relevant material when it failed to address the contents of the submission of Messrs Macpherson and Kelley and the extraneous material that was referred to in that submission. For these reasons I have come to the conclusion that the application to the Court should be allowed.”

The Oral Hearing before the Second RRT Member

32 Mr Barrett relied on the transcript of the hearing together with the reasons given by the RRT to support a finding that, in the Second Decision, the RRT denied the applicant procedural fairness. He also relied on the transcript and the Second Decision to support his submission that the Second Decision was tainted by bias.

33 The oral hearing took place on 24 July 2002. In response to the invitation to the hearing, the applicant nominated a witness to give evidence. The witness was Mr Khosrow Chohaili (also spelled Kosro Chohailee). The applicant said that Mr Chohaili would give evidence “about Mandaean situation in Iran”.

34 Mr Chohaili is the President of the Mandaean Association in Australia. The applicant did not know him personally but, it appears from the evidence, that he contacted Mr Chohaili by telephone to request that he provide evidence at the hearing.

35 Without notice to the applicant, the RRT obtained a witness statement from Mr Chohaili on 16 July 2002. Mr Chohaili told the applicant in a telephone conversation that he had sent a statement to the RRT but the applicant did not know the content of it. He was not given a copy of Mr Chohaili’s statement until part way through the hearing on 24 July 2002.

36 Mr Barrett submitted that the effect of what took place at the hearing was that the RRT persuaded the applicant not to have the witness called to give oral evidence upon the basis that the written statement was favourable. He also submitted the RRT led the applicant to believe that he would be given some time after the hearing to comment on Mr Chohaili’s statement. As will be seen later, in its decision, which was given only one week after the hearing, the RRT did not accept the witness’ evidence. Mr Barrett submitted that this amounted to a breach of procedural fairness. It was also an important plank in his argument that the RRT’s decision was affected by bias.

37 The applicant was not represented by lawyers or by his migration agent at the oral hearing. His only assistance was from an interpreter.

38 In order to consider Mr Barrett’s submissions, it is necessary to set out portions of the transcript. There were two separate tapes. All of the passages which I will set out below were on the transcript taken from the first tape except for the last mentioned passage which was on the second tape. The transcript is not always clear. There are a number of places where a statement was indistinct and this is recorded as “(in…)”. There are also a number of inarticulate utterances which I have not included in the quotation for ease of reading.

39 The following passages at paras [37] to [41] record all of the exchanges in relation to the issue of whether Mr Chohaili was to be called to give oral evidence.

40 The first passage appears on p 2 of Exhibit A. Although the applicant’s surname appears in the transcript in order to comply with s 91(x) of the Act, I will substitute the words “the applicant’ for the applicant’s surname. The passage is as follows:-

“[THE APPLICANT]: I have --- had a witness – is the witness going to be contacted?

INTERVIEWING OFFICER: I’ll come to your witness in a minute. No, I haven’t contacted him, but I have got a statement from him – I’ll come to that in a minute.”

41 The next passage appears at p 3 as follows:-

“INTERVIEWING OFFICER: … when you said you wanted him for a witness I wrote to him asked him could he send a written statement first, and he responded by saying he found your case plausible. He says you’re at risk of being killed, and then he gives some general information about, or general opinions about, what happens to Mandayians (sic) in Iran.

[THE APPLICANT]: (in…)

INTERVIEWING OFFICER: I didn’t think there was any real point in asking him to come along and give oral testimony because he’s – I think he’s already said what he needs to say in writing.

[THE APPLICANT]: Yes. Thank you.

INTERVIEWING OFFICER: Have you seen the statement that he sent on your behalf?

[THE APPLICANT]: No, I don’t.

INTERVIEWING OFFICER: okay, well, I’ll get … [an RRT employee] to copy it and we’ll send it to you and then I’ll wait for sometime after this hearing so you can – if you need to add to it you can.

[THE APPLICANT]: The night I spoke to him on the telephone I knew that he has sent (in…) but I haven’t seen the statement – the actual statement.

INTERVIEWING OFFICER: Well in effect (in…) he gives opinions about Mandayians (sic) in general that you’ve given already that all, you know, all Mandayians (sic) are at risk of persecution and they are seen to be unclean and they can’t go to universities and the Church is being closed down – many of the things you’ve said already.”

42 The next passage appears on pp 5-6 as follows:-

“INTERVIEWING OFFICER: (in.) so you don’t need to look over it today, I’ll wait, I’ll give you the time until I’m, I’ll have a look at it myself.

[RRT EMPLOYEE]: So as long as he gets it – do you want to get it out during the (in …) or?

INTERVIEWING OFFICER: Yes, well – just send – ring them up and tell them it’s coming.

[RRT EMPLOYEE]: Yep.

INTERVIEWING OFFICER: And the applicant needs it. But he doesn’t need to read – you don’t – I’ve just started arranging for this statement to be sent to you. You don’t need to read it today before the hearing finishes.

[THE APPLICANT]: (in …)

INTERVIEWING OFFICER: It’s written in English. Do you understand English?

[THE APPLICANT]: No, not very much.

INTERVIEWING OFFICER: So, have you got anyone there that can help you with it?

[THE APPLICANT]: (in …)

INTERVIEWING OFFICER: Yes, - it doesn’t say anything adverse about you, it’s all in your favour so it’s not going to prejudice you, but if you have a witness you actually should know what they’re saying about you.

[THE APPLICANT]: Thank you.

INTERVIEWING OFFICER: And in regard to your personal circumstances, he doesn’t say much other than that he says the opposite opinion that your story is plausible and that your life could be in danger.

[THE APPLICANT]: That I ask him only to testify in a matter of – in a religious matter, not on my personal or on an individual basis.

INTERVIEWING OFFICER: Yes, well he’s done that, he’s – he’s (in …) general observations or he’s given general opinions (in …)”

43 The next passage appears on pp 12-13 as follows:-

“INTERVIEWING OFFICER: Oh, okay. Well it’s in English so you might you might want to put it aside. As I said, it doesn’t say anything bad about you so it doesn’t say anything against you. … You don’t have to worry that it’s got adverse information.

[THE APPLICANT]: (in …)

INTERVIEWING OFFICER: “I’ll wait until Monday to give you an opportunity of – between now and Monday to have a look at it and if you if you feel like you need to say anything else then you’ll have time then.

[THE APPLICANT]: Thank you. Thank you for the opportunity you are giving me. (in …).

INTERVIEWING OFFICER: Yes?

… we’ve got an interpreter here that (in …) he can read the (in …) adjournment for 10 minutes.

INTERVIEWING OFFICER: Oh, you’ve got one now?

Yes.

INTERVIEWING OFFICER: Oh, okay. (in…) They’ve got an interpreter there who can read that to him. It will just take 10 minutes.”

44 The last passage on this topic appears at pp 16-17 as follows:-

“INTERVIEWING OFFICER: Yes, yes, we haven’t – we haven’t finished yet, I just – while the interpreter’s there I want to give you the opportunity to know what Mr Chahaylee said about you.

[THE APPLICANT]: Thankyou.

INTERVIEWING OFFICER: So don’t worry we haven’t finished. You’ll get – you’ll get the opportunity to say whatever you like.

HEARING OFFICER?: (in …)

INTERVIEWING OFFICER: Oh whatever’s easiest for – you know – whatever’s easiest. It’s not a matter of ---.

HEARING OFFICER: It doesn’t need to be taped?

INTERVIEWING OFFICER: No, not necessarily.

HEARING OFFICER: Okay. Thank you. The hearing is now (in…).

INTERVIEWING OFFICER: You can have a break if you like (in …).

INTERPRETER: Sorry?

INTERVIEWING OFFICER: Understand what your witness said on your behalf?

[THE APPLICANT]: Yes I do.

INTERVIEWING OFFICER: And you are satisfied that he – you don’t need for him to come and give oral evidence here?

[THE APPLICANT]: No, that’s fine thankyou very much.

INTERVIEWING OFFICER: So is that what you expected him to say on your behalf?

[THE APPLICANT]: Yes.”

45 The effect of the last passage is that the applicant was provided with a copy of the statement during an adjournment. The transcript does not record the length of the adjournment. However, the passage which appeared at pp 12-13 suggests that the adjournment was for approximately 10 minutes; see at [40].

46 At the start of the oral hearing, the interviewing officer said that he would assess the case “from the beginning”. Accordingly, he asked a large number of questions about the applicant’s claimed relationship with his Muslim girlfriend.

47 The applicant’s evidence was that he first met her in a shopping area. He said he gave her his telephone number and asked her to contact him. Mr Barrett relied upon the following passage which he said incorrectly stated the evidence about the difficulties which Sabians face when shopping for food. The passage appears at pp 11-12 as follows:-

“INTERVIEWING OFFICER: Why I ask because your evidence in effect says that Mandayians (sic) can’t go anywhere shopping because the Moslems in the shops hassle them so much that it amounts to persecution (in …).

[THE APPLICANT]: Well of course, you appreciate that they are not permitted to have to operate our own shop or our own shopping centre, so in order to get our necessities we have to go and shop in their shop, regardless of you know the persecution or hassling, we don’t have any other alternative, we don’t have a shop of our own.

INTERVIEWING OFFICER: Now is that right? You try – you’re telling me that (in …) are not allowed to own shops other than Goldsmiths I think it is?

[THE APPLICANT]: … [they are] not allowed to open any shop, particularly the food and also the cosmetics. I have actually to mention Sabis or a member of the Sabians going to the shop – he or she is not allowed to touch any goods. The shopkeeper comes, picks whatever he needs or she needs, puts it in a plastic bag and just drop it in. He or she is not allowed.”

The last part of this passage does not appear in those words in the exhibit but the passage which I have set out was agreed between counsel at the hearing as accurately reflecting what the applicant said.

48 The next passage on p 12 is an example of what Mr Barrett described as sarcasm on the part of the interviewing officer. It is as follows:-

“INTERVIEWING OFFICER: “… so you went to this shop, and you met this girl from the neighbourhood who happens to be a Moslem, and you were able to have a conversation with her and somehow write down your phone number and give it to her?

[THE APPLICANT]: Yes. Sorry I did not wrote anything, I just verbally told number and she memorised that.

INTERVIEWING OFFICER: And how long was it later – how long after that was it she called you?

[THE APPLICANT]: She was actually looking for an opportunity to call me (in…) about two or three days later.”

49 Mr Barrett relied upon the following passage. He said that the first question asked by the interviewing officer was a parody of the applicant’s evidence and that it showed a deliberate failure to understand the seriousness of the claim. The passage is at p 19 and is as follows:-

“[THE APPLICANT]: Well then she told me that my brother is there and just started to run away – she said I saw running away and then she tried to hide herself in all the crowd, and later on she went to her uncles and eventually went to their house, but her brother came and took her and dropped her from the balcony to the extent that he arms and also her (in…) was broken (in…).

INTERVIEWING OFFICER: How does dropping your Moslem sister over a balcony indicate that these people – that her family don’t like Mandayians (sic)?

[THE APPLICANT]: Well having a relationship between a Moslem female and a non-Moslem male is a great offence, is unforgivable offence and that is the reason why they dropped him … they dropped her from the balcony.

INTERVIEWING OFFICER: … Well I would have thought that just having a relationship that some chaperon might be a great offence if they, as you say, are very strict Moslems. (in…) a 16 year old schoolgirl”

50 After some further questions and answers on this topic, the RRT member asked:-

“INTERVIEWING OFFICER: So they throw their own sister and daughter over a balcony and break her bones, and then some time later lodge a complaint with the Government that she’s had a sexual relationship that in fact you’ve never had?

[THE APPLICANT]: (in …)”

The applicant’s response to this was indistinct but Mr Barrett said that the interviewing officer’s question was important because it indicated sarcasm on his part.

51 The next four passages which I will set out are important because Mr Barrett relied upon them to support his submission that the RRT’s findings as to the applicant’s credit indicated bias on the part of the RRT.

52 The first passage appears at p 20 as follows:-

“INTERVIEWING OFFICER: If it’s such a serious offence, I’m very surprised that you actually got – you were able to leave the country using a passport that had your own name and photograph on it. I’m very surprised that the family would bother laying a complaint after you’d left, and particularly after they’d already broken your girlfriend’s hip and her arm. I can’t see any advantage in it at all for them, and as I understand it, to make any accusation of a sexual offence turn into a conviction, you have to have several witnesses and they’ve got none, because there was never any sexual activity.

[THE APPLICANT]: Well the first thing in answer to your question, they did not - they were not aware of the fact that I’d left the country. They lodged the complain and they sent the police, you know, to arrest me. They did not know that … I left the country when they lodged the complaint.

INTERVIEWING OFFICER: (in …) you say they … must have lodged a complaint after you left. Well you hadn’t even been home, according to you, for three or four weeks before you left so they must have had some inkling.

[THE APPLICANT]: Well I was – for three weeks I was in Iran in order to arrange for my departure on leaving the country. What is your precise question.

INTERVIEWING OFFICER: I guess what I’m saying to you is I don’t actually find the story plausible, this whole story about your relationship with a girl. I actually find it implausible that you can – you can meet somebody in a public place every week, or sometimes every fortnight, for three years and not have any suspicions raised either in your family or her family, that’s one reason. I find it implausible that you could – that … the girl’s family has thrown her over a balcony because she’s had a relationship with a Mandayian (sic), not because she’s had a relationship in general, but with a Mandayian (sic), and yet they didn’t come to find you and you were in your uncle’s house in the same town. I find that implausible. And I find it implausible that they didn’t lodge a complaint against you if that’s what they were going to do, and if a complaint is a capital offence then I don’t believe you could have left the country with a passport with all of your biographical details on it.

[THE APPLICANT]: Can I forward them point by point?

INTERVIEWING OFFICER: Please.”

53 After one further exchange which I will not set out, the transcript continues on p 21 as follows:-

“[THE APPLICANT]: … Well her family actually raided our house, they were looking for me. At that time I was not at home, I was in my uncle’s home. They were not aware of the fact that I was staying with my uncle. What was your next question?

INTERVIEWING OFFICER: … Now according to you, nobody knew about this relationship so what did your uncle think when you went to stay with him and what did your other family members think when these strangers came and – or these neighbours – came and raided your house and yet they knew – they had no idea of what the reason was?

[THE APPLICANT]: Well I actually called you when (in…) my statement that I rang my mother and told her the whole story. Well I was actually.”

54 The final passage on this topic appears at pp 22-23 as follows:-

“[THE APPLICANT]: Now at the beginning, the family of … my girlfriend wanted to – were looking for me, wanted to find me and kill me, and after three weeks when they were disappointed and they knew that I was out of the country then they went ahead and lodged a complaint.

INTERVIEWING OFFICER: Well, so they only lodged a complaint after they knew you’d left?

[THE APPLICANT]: No. When they couldn’t find me and then they went and lodged a complaint. Possibly still they don’t know that I’m in Australia.

INTERVIEWING OFFICER: You just said, you just said to me when they knew you’d left the country, they lodged a complaint.

[THE APPLICANT]: No, I mentioned (in…) just mentioned then they were disappointed not finding me, then they went and lodged a complaint.

INTERVIEWING OFFICER: So they couldn’t find you, so the only person who can suffer from that complaint is their own daughter and sister.

[THE APPLICANT]: Well of course if the Islamic Government they can lay a hand on me or arrest me they will execute me, they’ll kill me.”

55 There is one further passage of the transcript which was relied upon by Mr Barrett. It deals with some letters provided by the applicant in relation to a Sabian pharmacist named Salim Naghdi Sobhi. The letters indicated that the pharmacist was dismissed from his employment with the government after the employer found that the pharmacist was not a Muslim. In the following passage, the RRT member suggested to the applicant that the letters were fabricated. The passage appears on p 4 of the transcript of the second tape (part of Exhibit A) as follows:-

“MR……….: One other consideration is that these letters are made up. They don’t sit comfortably with each other – you know fabricated documents.

[THE APPLICANT]: I don’t know. I haven’t sent these documents to you you don’t understand from the society you might you know ask where it came from the society. I personally don’t believe that these letter could have been fabricated or made because it has the stamp and signature of the (in …). I don’t know. I was not aware of the fact that I received a copy of the statement that (in …) Kelly (sic) made on behalf of me I became aware of this after. I don’t think these are fake letters.”

The Second Decision

56 The RRT accepted that the applicant has a subjective fear of persecution but it was not satisfied that the fear is well-founded.

57 The RRT’s findings were summarised in the following passage:-

“To summarise the reasons and conclusions that follow, the [Refugee Review] Tribunal found that the Applicant embellished or fabricated aspects of his evidence, particularly those related to his relationship with a Muslim girl. It is satisfied that he, and others speaking on his behalf, have exaggerated the situation for Mandaeans in Iran, even if they have unwittingly done so. While it accepts that Mandaeans, including the Applicant, encounter some discrimination, it does not accept that the Applicant faces a real chance of persecution for reason of his religion or membership of a minority ethnic group. Nor does it conclude that the making of a refugee application gives rise to a real chance of persecution for reason of an imputed dissident political opinion, even thought it may be known by Iranian authorities that the Applicant has made such an application and has criticised the authorities, and even when the consequences of making an application for asylum is considered in combination with the Applicant’s other claims.” (emphasis added)

58 It is evident that the words which I have emphasised are a reference to Mr Chohaili (and to the written submissions from M & K). In the passage immediately preceding the quote, the RRT summarised Mr Chohaili’s evidence. The effect of it was as follows:-

· The Iranian Government is unlikely to protect Sabians against Islamic excesses. An example of this was an order confiscating a Sabian church which was signed by the religious police and other powerful persons.

· Sabians are vulnerable in, inter alia, matters which come before the courts.

· The applicant’s evidence of his clandestine relationship with his girlfriend was plausible.

· Sabians are even more vulnerable than Baha’is who number about 300,000. Mr Chohaili made reference to documents which supported the evidence that Baha’is are persecuted but the document to which he referred did not expressly name the Sabians.

· Notwithstanding the election of the moderate President Khatami, persecution of minority religions has continued.

59 The RRT referred to the matter which I have summarised in the second last mentioned bullet point at [55] in the following terms:-

“A statement by his witness, Khosrow Chohaili, President of the Mandaean Association of Australia, claims that Mandaeans are a persecuted religious and ethnic minority, despite the fact that various human rights reports do not identify them by name. The statement goes on to claim that Mandaeans are even more vulnerable than the Baha’i, whose persecution is well-documented.”

60 The RRT gave lengthy reasons for finding that the applicant’s claim about his relationship with his girlfriend was not plausible. The reasons included the following passage:-

“It does not accept that a 16 year-old girl from a strict Muslim family, living in a society that has an extensive neighbourhood surveillance system and a network of religious police, could carry out a clandestine relationship for three years, that included meeting the Applicant in public places every week or fortnight, and going to his family home when nobody else was there.

…

His claim that they were never observed is not consonant with his evidence of close monitoring of social and religious life in Iran, or his claim that he was well-known as a Mandaean in his community.

…

In the context of the Applicant’s claims about harassment of Mandaeans in public and, in particular, in shops, it is inconsistent that he would be able to meet the girl in a local Muslim-operated shop, and have an exchange that resulted in him providing her with a phone number that she memorized for subsequent use. If her family is so vindictive that it threw her off a balcony after her brother merely saw her walking in the street with the Applicant, it is odd that they did not attack him or her after their initial meeting in the local shop which, in view of his evidence about the neighbourhood, must have come to her family’s notice.”

61 The RRT also said that the applicant’s devotion to his religion and his negative views about Muslims did not sit comfortably with his stated intention to marry a young Muslim woman whom he knew could neither marry nor convert to his religion.

62 The RRT found that the applicant’s claim that he loved the girl and intended to marry her was at odds with his failure to try to protect her.

63 The RRT also said that it was not believable that the applicant’s family failed to complain to the authorities after they were attacked. The following item of country information was said to support the RRT’s finding. The information was as follows:-

“In some respects Sobbis do not receive the same level of protection from the authorities that other Iranians enjoy. The police will generally protect Sobbis and generally do not discriminate against them, but Sobbis often have problems in the courts. If there is a legal dispute involving Sobbis and Moslems, the courts will often side with the Moslem party, especially if the judge is religious.”

64 The RRT referred to the applicant’s claim for a protection visa in which he gave his home address in Iran as the only place where he had resided during the three years prior to his departure. The RRT said that this was inconsistent with his claim that he was hiding for several weeks before his departure. The RRT also said that there was no evidence that his family had suffered further assaults even though the applicant had not been found by his girlfriend’s family.

65 In a long passage at p 13 of its decision, the RRT found that a major point against the applicant’s credit was that he said that the girl’s family made false allegations against him only after they knew he had left Iran.

66 In this passage, the RRT also referred to the fact that, in his initial interview, the applicant had not said he was accused of unlawful sexual acts. The RRT also referred to apparently inconsistent evidence as to when the applicant learned of the charge.

67 The RRT went on to find that the applicant had concocted his relationship with the young woman and that his family had not been harassed by hers. It said that this conclusion was consistent with his capacity to leave Iran without interception. His evidence was that he had left on a false passport in his own name and that he paid $US10,000 bribe to a passport official.

68 However, the RRT said that available information indicated that the Iranian Government imposes stringent security checks on persons departing the country. The RRT concluded that he would have been intercepted if in fact the girl’s family had made allegations against him.

69 The RRT went on to deal with the other limb of the applicant’s claim, namely that, as a Sabian, he faces persecution by Muslims. It cited and set out extracts from the following items of country information:-

The US State Department’s 2001 Annual Report on International Religious Freedom: Iran, Bureau of Democracy, Human Rights & Labour, October 2001.

Professor Sanasarian, Religious Minorities in Iran (2000); Cambridge University Press, Vic.

UK Home Office, Country Assessment Iran April 2002

1998 UNHCR Report

Dr Jorunn Jacobsen Buckley, The Mandaeans: An Unknown Religious Minority in the Near East

DFAT, Country Profile on the Islamic Republic of Iran, Canberra, March 1996

DFAT Country Information Report No 61/00, 7 February 2000

DFAT Country Information Report No 594/00, 21 November 2000

DFAT Country Information Report No 77/01, 26 February 2001

DFAT Country Information Report No 165/01, 11 June 2001

Research Directorate of Immigration & Refugee Board of Canada, July 1999

70 I will not quote the extracts. The essential points made in them were:-

· Sabians, in common with other pre-Islamic non-Muslim communities, face discrimination which is officially sanctioned by the Government. This is most notable in employment, education and housing

· Religious minorities including Sabians, suffer discrimination in the legal system. The courts treat Muslims more favourably than Sabians and often side with Muslims against Sabians.

· Sabians work mainly in agriculture and with precious metals.

· They are not politically important.

· Sabians were protected as “a people of the book” until the fall of the Shah in 1980 when they lost their protection. However, in about 1999, President Khamenei issued a favourable fatwah. Since then, the Sabians’ hopes are said to have strengthened.

· Sabians are permitted to perform some religious ceremonies but they sometimes experience interference in their religious practices.

· According to the DFAT report dated 26 February 2001, DFAT was not aware of “systemic harassment” of Sabians but said that it was difficult to ascertain the extent of harassment because it was confined to the Khuzestan Province. I interpolate here that, as O’Loughlin J noted at [10], this implicitly recognised that Sabians were harassed in the applicant’s own province.

· According to one commentator, Professor Sanasarian, there are many rumours and misinformation about the treatment of minorities by the Islamic Republic of Iran.

71 The RRT accepted that some persecutory incidents happen and that Sabians encounter prejudicial conduct in some circumstances. However, the RRT said:-

“… it is noticeable that sources other than Mandaean sources do not all support the view that Mandaeans are generally subject to persecution such as forced conversion, or systematic denial of fundamental rights.”

I note that this implies that some non-Mandaean sources do support this view.

72 The RRT found that Sabians were historically recognised as a “people of the book” but stated that their protection was curtailed in the early 1980s. The RRT found that their status was “partly restored” by the favourable Presidential fatwah issued in about 1999.

73 The RRT also found that it was plausible that the applicant’s mother withdrew his sister’s schooling because of pressure to convert to Islam. Further, the RRT noted that the applicant did not claim that he or other members of his family were pressured to convert. The RRT found that the applicant’s sister’s withdrawal from school did not support a conclusion that the applicant faced a real chance of persecution.

74 The RRT accepted that the applicant encountered some harassment in daily life, such as being abused for touching food while shopping. Nevertheless, the RRT said that his ability to travel in Iran and to operate his business and practice his religion led the RRT to find that he had exaggerated the extent of the discrimination he had suffered. This was said to be consistent with the ability of his siblings to continue to live in Ahwaz.

75 The applicant gave evidence that his younger brother had been forced to repeat year 9 on four occasions, ostensibly because he failed courses in reading the Koran. The RRT found that in those circumstances the applicant’s brother had failed on the merits of his performance rather than as a result of his religion.

76 The RRT accepted that access to government jobs and universities was “restricted” for Sabians. Nevertheless, the RRT found that these policies, albeit discriminatory, did not amount to persecution because the applicant and his family were able to pursue successful livelihoods in the gold and jewellery business.

77 Although the RRT put it to the applicant at the oral hearing that the letters relating to the sacked Sabian pharmacist were fraudulent in its written reasons, the RRT simply referred to the letters without making any finding. The RRT did not mention the suggestion which it had put to the applicant that the letters were faked.

78 The RRT reiterated the findings that were made in the First Decision that the applicant’s claim about his father’s death did not indicate that hospital admission was not open to Sabians.

79 The RRT noted that the US Department of State publication, the 2001 Report on International Religious Freedom: Iran and the UK report referred to above made detailed analysis of harassment of minority religious groups. The RRT said:-

“The Tribunal is satisfied that the U.K. and U.S. government reports have canvassed a very broad array of reports and materials and have deliberately omitted mention of human rights abuses against Mandaeans because they do not have the evidence to substantiate a conclusion that Mandaeans are the target of government harassment.”

80 The RRT went on to say that it did not follow that members of minority religions do not encounter discriminatory government policies. However, the RRT said that the applicant did not claim that he had encountered discrimination by court officials and there was no available evidence to suggest that he or his family might suffer discrimination in the future.

81 The RRT was satisfied that Sabians can practice their religion although it is possible that there are “some Muslims intent on making trouble” for Sabians. Nevertheless, it found that Sabians can pursue their religious practices so long as they “do not upset Muslim sensitivities”.

82 The RRT dealt with the evidence of Father Monaghan and Sister Higgins by stating that there was no reason to disbelieve that Sabians had been subject to harassment. However, the RRT noted that Father Monaghan observed that those Muslims were “bigoted people”, not representative of the majority of Muslim detainees at the Woomera Detention Centre.

83 The RRT found that the available information led to a conclusion that the vast majority of Muslims in Iran do not persecute minorities, although this does not prevent bigots from airing their prejudices.

84 The RRT was not satisfied that the various “inconveniences” suffered by Sabians amounted to persecution. The RRT said:-

“The Tribunal is not satisfied that such an inconvenience amounts to persecution or that it applies in all transactions between Muslims and non-Muslims. It accepts that the Applicant has been abused from time to time for handling goods and it is unfortunate that he should encounter such ignorance and prejudice. However, such encounters do not constitute persecution, even when considered in combination with discrimination that occurs at a more institutional level, as described in the above information.”

85 The RRT concluded its decision with the following remarks:-

“The Tribunal has no reason to doubt that Iran’s human rights record is open to criticism. It is satisfied that the Mandaeans encounter discrimination at an institutional level and from some ignorant and prejudiced members of the Muslim population. However, it is not satisfied that the Applicant’s human rights have been abused in the past to the extent that, taken cumulatively, he has been persecuted for reason of his religion, membership of a minority ethnic group or for any other Convention reason. Despite the prospect of encountering some discrimination if he returns, the country information indicates that such discrimination does not amount to persecution and, in any event, he can generally anticipate the proper protection against harm will be forthcoming from the authorities.”

Decision – Denial of Procedural Fairness

86 In my view, the effect of the evidence at the oral hearing to which I referred at [37] to [41] above, supports Mr Barrett’s submission that the RRT persuaded the applicant that it was unnecessary for Mr Chohaili to give oral evidence.

87 The RRT said:-

“He told the Tribunal he had never met or spoken directly with Mr Chohaili and that he was satisfied that Mr Chohaili had adequately expressed his views in writing and did not need to provide oral evidence.”

I do not think this is an accurate statement. The applicant’s evidence was that he had spoken by phone to Mr Chohaili although it is true that he had not met him. The statement that the applicant was satisfied that Mr Chohaili “had adequately expressed his views in writing” were not the applicant’s words, although he did agree, in answer to a leading question, that he did not need the witness to give oral evidence, see at [41].

88 It seems to me that the passages which I have quoted from the transcript indicate that the RRT member gave the applicant the impression, not only that Mr Chohaili’s evidence was favourable but also that the evidence would be accepted.

89 The question which then arises is whether, prior to making a finding that it did not accept Mr Chohaili’s evidence, the RRT came under an obligation of procedural fairness to give the applicant notice of its intention to make that finding and to provide him with an opportunity to put submissions against it.

90 A decision as to whether a person is to be granted a protection visa affects the person’s rights, interests and expectations. The rules of procedural fairness apply unless they are excluded by plain words of “necessary intendment” in the Act; see Annetts v McCann (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [90], [126] and [171] – [172].

91 Division 4 of Part 7 of the Act deals with the conduct of a review by the RRT. There are two provisions of Division 4 which need to be considered in this factual context in order to determine whether the Act excluded any common law obligation of procedural fairness in relation to the RRT’s findings about Mr Chohaili’s evidence.

92 Section 424A(1) provides that the RRT must give to an applicant particulars of any information that the RRT considers would be a reason or part of the reason for affirming the decision under review. This obligation does not apply to the categories of information referred to in s 424A(3).

93 Section 426(3) of the Act provides that if the RRT is notified by an applicant that he or she wants the RRT to obtain oral evidence from a person, the RRT must have regard to the applicant’s wishes but is not required to obtain evidence, orally, or otherwise from that person.

94 Here, the question is whether each of those sections constitutes a code which thereby excluded any obligation of the RRT to notify the applicant that it proposed to reject Mr Chohaili’s evidence after first having given the applicant the opposite impression. In my opinion, these sections do not, in clear terms, deal with the residual common law obligations of procedural fairness which must be assumed to apply; see the discussion of s 424A
by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2002) 185 ALR 489.

95 I do not consider that the RRT’s impressions about the credibility of a witness’s evidence is “information” which falls within s 424A; see NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [8] per Branson J.

96 Moreover, I do not consider that s 426(3) had any bearing upon the RRT’s obligations in the circumstances which arose in this case. This is because the question was not whether the RRT should have had regard to the applicant’s wishes. The RRT had in effect called Mr Chohaili in his written testimony. The question which arose was whether, in the light of what the RRT had said to the applicant about the favourable nature of Mr Chohaili’s evidence, it came under an obligation to notify the applicant that it proposed to reject Mr Chohaili’s evidence in order to achieve procedural fairness.

97 Accordingly, it seems to me that the common law rules of procedural fairness applied to the circumstances of this case. The RRT could not make a finding adverse to the applicant’s interests, that is by rejecting Mr Chohaili’s evidence, without first giving the applicant an opportunity to make submissions against that finding.

98 In my view, the applicant had a “legitimate expectation” that the evidence would be accepted. This did not compel the RRT to accept the evidence but it did require the RRT to give him notice and an adequate opportunity to put a case against the rejection of Mr Chohaili’s evidence; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kioa v West (1985) 159 CLR 550.

99 It is true that there was no evidence before me as to what Mr Chohaili might have said if he was called to the witness box. As a general rule, a denial of procedural fairness will not of itself result in jurisdictional error unless it can be seen that compliance with the rules of natural justice could have made a difference to the outcome; see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.

100 Here, the denial of procedural fairness deprived the applicant of the opportunity to make submissions about the evidence of an independent witness of fact whose evidence could, if properly considered, have resulted in a different view of the credibility of the applicant’s case and therefore a different outcome before the RRT. This constituted jurisdictional error prior to the enactment of the privative clause but it is not reviewable under s 474 of the Act if the Hickman provisos are satisfied; see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [648] per von Doussa J with whom Black CJ and Beaumont J agreed.

Decision on Error of Law – Failure to Consider M & K’s written submissions

101 As stated at [28] above, O’Loughlin J found at [22] that the RRT committed an error of law in failing to refer to the contents of M & K’s submissions.

102 His Honour referred, at [16] to three items which were omitted. The first was a statement that there is substantial evidence of persecution of Sabians which was supported by an extract from the US State Department Annual Report for an unidentified year.

103 In the Second Decision, the RRT referred to the US State Department’s 2001 Annual Report. This seems to be a more recent report than the reference cited by M & K. Accordingly, I do not think that the failure to refer to the earlier report was a material omission.

104 The second item was an article by Jorunn Jacobsen Buckley. This was referred to in the Second Decision.

105 The third item was an extract from a work entitled “The Journal for the Study of Research into the Mandaean Culture, Religion and Language”. It stated:-

“Even today, a Moslem will not allow a non-Moslem to touch store merchandise. Indeed, a Mandaean must ask for a certain item and then the Moslem will hand it to that Mandaean. Of course, the item cannot be returned because it has become polluted, due to being touched by a non-Moslem. In fact many stores require Mandaeans to bring their own tongs to select the merchandise.”

106 There was no reference to this item in the Second Decision. However, the RRT found that the applicant had encountered harassment in daily life “such as being abused for touching food while shopping.”

107 I am not persuaded that the omission of this item of country information of itself gives rise to a conclusion of the RRT failed to address M & K’s submissions. However, it does seem to me that the issue which arises is whether the omission was one of the indicia of another error of law, namely a failure to address the question of whether the acts of discrimination complained of by the applicant amounted to persecution.

Decision on Error of Law – Failure to Consider the Definition of Persecution

108 The RRT acknowledged that even though it found that the applicant had fabricated his claim of a relationship with his Muslim girlfriend, it was still necessary to consider whether his broader claim of fear of persecution as a Sabian had been established.

109 In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [65], McHugh J said that, for the purposes of the Convention, persecution is:-

. unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason

. which constitutes an interference with the basic human rights or dignity of that person or the persons in the group

. which the country of nationality authorises or does not stop, and

. which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.”

110 McHugh J’s judgment was in dissent but the statement of principle which I have set out is generally accepted as an accurate definition which is consistent with the statutory definition of “persecution” in s 91R of the Act.

111 The RRT made a number of findings that discriminatory conduct was directed at the applicant and against Sabians as a group.

112 There were eight findings on this question: first, that Sabians’ protection was only partly restored by the Presidential fatwah; second, that the schooling of the applicant’s sister was terminated because she had been pressured to convert to Islam; third, that the applicant encountered harassment in daily life eg being “abused” for touching food; fourth, that access to government jobs and universities was “restricted” for Sabians.

113 The fifth finding was that members of minority religious groups (which must have included Sabians) suffered discriminatory government policies including discrimination in the courts; sixth, “some Muslims” target Sabians for “trouble”; seventh, Sabians are harassed at Woomera Detention Centre by “bigoted” Muslims but not by the majority of Muslim detainees; eighth, that although the vast majority of Muslims in Iran do not persecute Sabians, “bigots” air their prejudices.

114 The RRT dealt separately with each of these findings in considering whether they amounted to persecution. I will not list each conclusion. I have set them out at pars [69] to [73] and [77] to [80] above. The effect of the RRT’s findings was that these “inconveniences” did not amount to persecution. The question which arises is whether the RRT, in finding that these discriminatory practices did not amount to persecution, asked itself the question of whether these acts were so oppressive that the applicant could not be expected to tolerate them. Of course, it was not necessary for the RRT to set out each of the limbs of McHugh J’s definition. It was sufficient for the RRT to consider the substance of the test.

115 In my view, the RRT did address in general terms the question of whether each aspect of the discriminatory practices to which it referred was so oppressive as to amount to persecution. It is not for me to express a view as to the answers which the RRT gave to the questions. They were a matter for the RRT and cannot be the subject of judicial review because to do so would be to embark on a consideration of the merits.

116 I was troubled by the fact that no reference was made to the item of country information cited by M & K to the effect that Sabians cannot handle food in shops owned by Muslims. However, on balance, I do think that the RRT addressed the question.

117 In the passage which I have set out at [82] above, the RRT said that it had considered the claims of discrimination cumulatively. The RRT was not satisfied that, taking the applicant’s claims cumulatively, he had been persecuted on the ground of religion or membership of a minority ethnic group. I do not consider that it is open to me to go behind that finding on the question of whether the RRT made an error of law in failing to address the issue of persecution. However, this does not affect the outcome on the question of bias which I will deal with below.

118 In SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 (“SBAU”), Mansfield J held at [58] that, on the findings made by the RRT in that case, the RRT did not address the question of whether the discriminatory conduct to which the Sabian applicants were exposed was so oppressive that they could not be expected to tolerate it. Of course, each case depends upon its own facts and upon the reasons given by the RRT. Here, I am unable to find that the RRT failed to address the issue of persecution.

Bias

119 In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [35], von Doussa J noted counsel’s acceptance of the proposition that the privative clause contained in s 474 of the Act would not preclude review of a decision where the RRT did not act in good faith. His Honour said that this would include most cases of actual bias.

120 von Doussa J reiterated this view in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [630]. His Honour’s views on this issue were concurred in by Black CJ and Beaumont J.

121 In SCAA at [36] to [38], von Doussa J set out the principles which apply to the question of whether a finding of actual bias is to be made. The relevant considerations are:-

· First, actual bias arising from pre-judgment involves a state of mind by the decision-maker which is committed to a conclusion already formed. The question which arises is whether the decision-maker’s mind is open to persuasion.

· Second, the party alleging bias carries a heavy onus.

· Third, it is wrong to jump too readily from faulty or misconceived reasoning to a finding of bias but errors of reasoning may be so egregious as to warrant a finding that the decision-maker has prejudged the case.

· Fourth, it will be a rare case where actual bias can be demonstrated solely upon the published reasons but conduct of a decision-maker which is antithetical to a party’s interests such as hostile attitude at the hearing may enable an inference of bias to be drawn.

122 His Honour also observed at [37] that a finding of actual bias against a decision-maker is a grave finding and cannot be made lightly.

123 Similar views were expressed by Mansfield J in SBAU at [28] to [32].

124 I have given this issue anxious scrutiny but have come to the view that the transcript of the hearing on 24 July 2001 and the reasons given by the RRT reveal actual bias on the part of the decision-maker.

125 The approach taken by the decision-maker at the hearing demonstrated, in my opinion, an attitude of hostility to the applicant’s case which revealed that the RRT member was not open to persuasion. The matters which have led me to this view are set out in the passages at [37] to [52] above.

126 Having stated initially that the applicant could have a few days to consider the statement, the RRT member changed course and allowed the applicant only about 10 minutes to enable the interpreter to translate it. The RRT member then, in the form of a leading question, asked the applicant whether he was satisfied that he did not need Mr Chohaili to give oral evidence.

127 The effect of the passages of the transcript which I have set out at [37] to [41] satisfy me that the RRT member set out to persuade the applicant that it was unnecessary to call Mr Chohaili to give oral evidence. When these passages are read in the light of the hostility expressed to the applicant’s case in other passages of the transcript which I have quoted, it seems to me that the inference is open that the RRT member’s mind was closed from the outset.

128 The other passages which I have quoted from the transcript reveal at [44] to [52], as was submitted by Mr Barrett, a parody of the applicant’s evidence about the serious consequences which flowed from his relationship with his Muslim girlfriend as well as sarcasm and outright disbelief of the applicant’s claims.

129 I do not consider that the RRT member was actuated by malice but it is unnecessary for a finding of malice to be made.

130 The closed mind of the RRT member is further evidenced by the findings made in the Second Decision. The findings which were made as to the implausibility of the claim that the applicant had a clandestine relationship with a Muslim woman seem to me to contain flawed and illogical reasoning.

131 I do not see why the applicant’s “negative views about Muslims”, at [58] or perhaps more accurately, his fear of them, is in any way at odds with his stated intention to marry a Muslim notwithstanding the impediments to official acceptance of such a relationship. The applicant was 21 when he says he met his girlfriend. She was 16. Mr Barrett referred to “Romeo and Juliet” as a reminder of this sort of relationship. Also, Mr Chohaili did not consider it implausible.

132 The finding that the applicant’s claim of love for the girl was at odds with his failure to protect her, at [59], ignores all the objective evidence that Sabians are not in a position to protect anyone, especially a young Muslim girl, from parents who were said to be hostile to her relationship with a Sabian.

133 Also, the finding that it was not believable that the applicant’s family failed to complain to the authorities after they were physically attacked, at [60], ignores the objective evidence of discrimination against Sabians in the courts. The passage of country information which was cited in support of the finding has the opposite effect.

134 The finding that the applicant’s address as stated in his application for a protection visa was inconsistent with his claim that he was hiding at his uncle’s house for three weeks before his departure, at [61], seems to me to be quite flawed. I do not see why a temporary hiding place ought to have been shown as a place of residence.

135 The finding that the applicant’s evidence should not be accepted because he said that the girl’s family made false allegations only after they knew he left Iran, at [62], does not fairly state the evidence. It is true that the applicant made that statement at the hearing but he quickly corrected himself and said that this was not what he meant. He said that what he meant was that when they could not find him at his house, the girl’s parents raised the complaint.

136 I do not propose to repeat all of the findings about the “concocted relationship” made by the RRT. I have set them out in detail above at [57] to [65]. In my view, all of the findings are so strained against the applicant’s case that they reveal a mind which was closed to any other outcome.

137 I may not have been prepared to make a finding of actual bias upon the basis of the Second Decision standing on its own. However, it seems to me that when the reasons are read in light of the attitude taken at the hearing, the heavy onus which the applicant bears is made out.

138 I have borne in mind that O’Loughlin J at [22] did not consider the RRT’s findings about the applicant’s relationship with his girlfriend to be illogical. However, the transcript of the oral hearing and the reasons given in the Second Decision go far beyond the matters which were before his Honour.

139 Finally, I do not consider that the quotations from the country evidence relied upon by the RRT in the Second Decision were so selective as to indicate bias on that ground. Nevertheless, it is sufficient here for me to make a finding that the RRT member’s mind was closed for the reasons given above.

Conclusion

140 The orders which I propose to make are that the Second Decision is to be set aside, the matter is to be remitted to the RRT for further consideration according to law and the respondent is to pay the costs of this application.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date: 19 December 2002

Counsel for the Applicant:	Mr G F Barrett QC

Solicitor for the Applicant:	Refugee Advocacy Service of South Australia

Counsel for the Respondent:	Mr K Tredrea

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	15 November 2002

Date of Judgment:	19 December 2002

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