Gill v Minister for Immigration & Multicultural Affairs

REQUIRED PROCEDURES 6 Ground 1 is based on section 476(1)(a) of the Migration Act 1958 (Cth) ("the Act"), which affords a ground of review as follows: (1) Subject to subsection (1), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) That procedures that were required by this Act or the Regulations to be observed in connection with the making of the decision were not observed." Section 414 provides as follows: "(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 411(3)." 7 It is difficult to see how section 414 requires that a procedure be observed or constitutes a procedure. It is apparent that the Tribunal did in fact review the decision of the Minister's delegate. The reasons record that the Tribunal was given the Department's file relating to Arshad and that Arshad appeared before the Tribunal to give oral evidence on 8 December 1999. While Arshad was unrepresented at the hearing, the Tribunal was assisted by an interpreter in the Urdu language. The reasons for the Tribunal's decision run to more than 15 pages. The reasons follow a common form of reasons delivered by the Tribunal in reviews under the Act. They contain headings as follows: · "Background", · "Legislative Framework", · "Evidence", · "Findings and Reasons for Decision". 8 Under "Legislative Framework", the provisions of the Act and the Refugees Convention are summarised together with leading decisions of the High Court on the interpretation of those provisions. Under the heading "Evidence", appears a detailed statement of evidence given by Arshad. Under the heading "Findings and Reasons for Decision", reasoning is set out that leads to the Tribunal's conclusion that it was not satisfied that Arshad has a well founded fear of being persecuted for a convention reason if he returns to Pakistan. I do not understand any argument that suggests that the Tribunal did not review the decision of the Minister's delegate as is required by section 414. 9 Section 427(1)(d) provides as follows: "(1) For the purpose of the review of a decision, the Tribunal may: ……………………… (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that investigation or examination." A submission was made on behalf of Arshad that in certain circumstances the powers conferred by section 427 must be exercised. It was said that if a power is given the existence of that power may require procedures to be taken in circumstances that call for the power to be exercised. The contention appears to be me to be circular. 10 Section 427(1) confers a discretionary power on the Tribunal. It does not require that that power be exercised. The provisions of section 427 can be contrasted with provisions such as section 425 which requires that in certain circumstances the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. 11 It was contended, nevertheless, that in circumstances where the Tribunal was to make a decision concerning the authenticity of certain documents and Arshad insisted that the documents were genuine, a duty arose on the part of the Tribunal to exercise the power conferred by section 427(1) to arrange for an examination of the documents. The argument appears to me to have no substance. I do not consider the fact that Arshad maintained the authenticity of documents imposed any obligation on the Tribunal to exercise the power under section 427 to arrange for the making of any investigation in relation to the authenticity of the documents.

NO EVIDENCE 12 Section 476(1)(g) provides a ground as follows: "that there was no evidence or other material to justify the making of the decision". However, under section 476(4) that ground "is not to be taken to have been made out" unless one of two requirements are satisfied. Arshad relied on the second requirement contained in section 476(4)(b) as follows: "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist". It was said that the particular fact on which the decision was based was that certain documents were forgeries. 13 Section 476(1)(g) as explained by section 476(4)(b) requires three prerequisites to be satisfied. First, the decision must be based on a particular fact. Second, that fact must be negatived. Third, there must not be any other evidence before the Tribunal that was capable of supporting the fact. The Tribunal set out the evidence before it upon which it based its conclusion. Whether that was evidence that could support the application was not argued. It is clear, however, that there was no evidence adduced before me to show that the so-called fact did not exist. It any event, I am satisfied that there was evidence before the Tribunal as to the matters in question as set out in its reasons. The evidence on which the Tribunal based its conclusions will be summarised when dealing with the ground of actual bias. Accordingly, at least two of the prerequisites for the application of section 476(1)(g) were not satisfied.

ACTUAL BIAS 14 Section 476(1)(f) provides the following ground for review: "that the decision was induced or affected by fraud or by actual bias". The case advanced on behalf of Arshad is that the member who constituted the Tribunal in deciding Arshad's case brought to that decision an unfavourable impression of the credibility of Amjad. It was said that an inference should be drawn that the Tribunal based its assessment of the credibility of Arshad on the determination made by it of the credibility of Amjad. 15 It is clear, from the reasons published in relation to Amjad, that the Tribunal formed an adverse opinion of his credibility. Amjad appeared before the Tribunal to give oral evidence on 20 December 1999. The Tribunal considered that there were numerous inconsistencies in Amjad's evidence relating to his education and the occasions on which he claimed to have been arrested and attacked. 16 Having regard to the numerous inconsistencies regarding those matters, the Tribunal did not consider that Amjad could be accepted as a witness of truth. In particular, the Tribunal did not accept Amjad's evidence regarding his involvement in the Tehrik-i-Nifaz-i-Fiqah-i-Jaffaria (TNFJ) and the Imamia Students Organisation (ISO). The Tribunal did not accept that Amjad is a Shiite Muslim as he claimed and therefore did not accept that he would have joined the TNFJ and the ISO which are Shiite organisations. Because the Tribunal did not accept that Amjad had any involvement in the ISO or the TNFJ it considered that certain documents were fabrications. As a result of the conclusion that the Tribunal formed of Amjad's credibility it did not accept that he had been arrested in 1991 and 1992 as he claimed. 17 Ultimately, the Tribunal concluded that Amjad was not a Shiite Muslim as he claimed and preferred Amjad's evidence that the members of his family are Sunni Muslims. The Tribunal wrote to Amjad referring to evidence given by Arshad and indicating, in effect, that the Tribunal preferred the evidence of Arshad in relation to that matter. The Tribunal did not accept that Amjad had a well founded fear of being discriminated against by reason of his adherence to the Shiite sect if he returned to Pakistan now or in the reasonably foreseeable future. The Tribunal also referred to witnesses whom Amjad asked the Tribunal to take evidence from at one of the earlier hearings. While the Tribunal did not have the opportunity of observing those witnesses it felt unable, having regard to the view that it had formed of Amjad's credibility, to accept that either of those witnesses were telling the truth. 18 The contention on behalf of Arshad was that, in the light of those conclusions concerning his brother, when one considers the unfavourable conclusions reached by the Tribunal in relation to a number of specific questions in Arshad's case, an inference should be drawn that the Tribunal had not brought an open mind to bear on Arshad's case. An inference should be drawn, so it is said, that the finding as to the credibility of Arshad was based on the determination of the credibility of Amjad.

Authenticity of Documents 19 The first of the four specific questions referred to concerns findings by the Tribunal rejecting the authenticity of documents tendered on behalf of Arshad. There were several documents as follows: · A certificate purporting to be from the Ahmadia Anjuman Lahore, stating that Arshad was a member and that on 14 January 1995 he had been involved in a criminal case when he was preaching for his religion; · A letter purporting to be from a lawyer in Lahore; · A detention order supposedly issued on 1 April 1996 under section 16 of the Maintenance of Public Order Ordinance ordering the detention of Arshad for three years; · Two orders in relation to pre-arrest bail dated 22 May 1995 and 4 March 1996. 20 The Tribunal concluded that all of those documents were not authentic. The Tribunal considered that the appearance of the documents points to the conclusion that they were all prepared using the one typewriter. That conclusion was reached on the basis that, if they were genuine, they would each have come from different sources. 21 Next, there was a document purporting to be a copy of a First Information Report ("FIR") registered against Arshad on 14 January 1995. An FIR in Pakistan is the initial report of a criminal offence recorded by the police. The FIR document was rejected by the Tribunal for the reason that it lacks a police seal. The Tribunal relied on Australian Department of Foreign Affairs and Trade information that all FIRs are required to have an official police seal placed at the end of the report. 22 The final document was an arrest warrant in relation to Arshad as a proclaimed offender dated 13 May 1997. The arrest warrant is in Urdu script. However, the Tribunal had information available to it that all arrest warrants in Pakistan have to be typed. For that reason the Tribunal rejected the document as an authentic document. 23 Arshad maintained that all of the documents were genuine documents. He invited the Tribunal, if it did not accept their authenticity, to approach the Pakistan authorities to verify the documents. The Tribunal declined to do so because of the confidentiality attaching to the refugee decision-making process. Reliance was also placed on the fact that, quite apart from refusing to endeavour to verify the authenticity of the documents with the Pakistan authorities, the Tribunal took no steps to exercise the power under section 427(1)(d) to arrange for the making of an investigation into the authenticity of the documents. 24 The conclusion of the Tribunal as to the authenticity of the documents was supported by the reasoning to which I have just referred. That reasoning indicates that there was at least some evidence before the Tribunal on which it could base a conclusion of fact that the documents were not genuine. Even if that conclusion were wrong, it would not of itself amount to bias.

Arshad's Religion 25 The second matter relied upon as giving rise to an inference of actual bias is the Tribunal's treatment of a question concerning the statement of Arshad's religion in his passport. Arshad contended that he is an adherent of the Ahmadi sect of Islam and that once it became known that he was attending Ahmadi religious gatherings, his friends had become enemies and he had been abused by shopkeepers. 26 Arshad's passport, renewed in 1997, gives his religion as Muslim. The Tribunal had available to it information that indicated that in order to have his religion stated as Muslim in his passport, Arshad would have had to sign a declaration in the application form stating that he did not recognise any prophet other than Muhammad. In particular, he would be required to state that he considered Mirza Ghulam Ahmad to be an imposter and his followers to be non-Muslim. The Tribunal therefore refused to accept that Arshad is an Ahmadi. It therefore did not accept that false charges had been brought against him by reason of his religion as he alleged. 27 Nevertheless Arshad had maintained before the Tribunal that he was an Ahmadi. The contention advanced before me was that a fair minded person in the position of the Tribunal should accept that a person who asserted he was a Muslim, was a Muslim, and should have rejected the independent evidence that an Ahmadi would not have signed the declaration necessary to have his religion recorded as Muslim on his passport. That of itself is incapable it seems to me of constituting evidence of actual bias. That is a matter of assessing the material before the Tribunal, weighing it up and reaching a conclusion of fact.

Arshad's Lack of Knowledge of the Ahmadi Faith 28 The third matter relied upon as giving rise to an inference of actual bias concerned the Tribunal's conclusion that Arshad did not have sufficient knowledge of the basic principles or beliefs of the Ahmadi faith to justify a conclusion that he had in fact converted to the Ahmadi faith. The Tribunal recorded that it put to Arshad that if he had actually converted to the Ahmadi faith he would have undertaken to abide by ten guiding principles of the faith. Arshad agreed. When asked if he could tell the Tribunal what those principles were, he said that the first was to preach the religion, to live in the community as brothers and that those people in the community should live like brothers and sisters, to listen to the leader of the organisation and to take up Jihad for the religion. 29 The Tribunal recorded that it put to Arshad that the ten guiding principles included agreeing to pray five times a day. Arshad responded that he had said that you had to pray for the religion. However, the Tribunal suggested that he had referred to "preaching" and not "praying". The Tribunal recorded that Arshad had been asked what the differences were between the Lahoris and the Qadiani groups. A response was given and Arshad was asked whether there were any other differences. When he responded that there was not much otherwise, the Tribunal suggested to him that the major difference was that the Lahori group did not believe that Mirza Ghulam Ahmad was a full prophet but believed he was simply a reformer rather than a full prophet. 30 The Tribunal also put to Arshad other deficiencies in what the Tribunal considered ought to have been the state of his knowledge had he converted to the Amadi faith as an adult. Those are matters that it was open to the Tribunal to take into account in reaching a conclusion as to whether or not Arshad should be believed in saying that he had converted to the Amadi faith. 31 In his original application, Arshad explained the circumstances in which he had converted. The handwritten note in support of his application, with spelling corrections, appears to be as follows: "After completing my BA examination, I was doing business when aunty [referring to a family friend] asked me to join their religion. I had a close observation of their lifestyle since my childhood. Actually I liked their lifestyle. She told me more about their religion and left decision on me. Aunty had too much influence on me. I preferred aunty in every mother more than my parents. I could not make aunty sad because where I was in my life that was only due to aunty's efforts. I thought a lot and, with great awareness, I decided to adopt their religion." 32 It was put on behalf of Arshad that if they were the circumstances in which the Amadi faith was adopted by Arshad, it would be understandable that he would not necessarily know as much about the faith as a person who had, without pressure from close friends or relatives, decided to convert. Be that as it may, that appears to me to be a matter of weight for the Tribunal. It does not of itself constitute a fact that can give rise to actual bias.

The Reference to Amjad's Case 33 Finally, reliance was placed on a reference in the Tribunal's conclusion to the case of Amjad. The reference is in the following terms: "I do not accept that he [the applicant] and his youngest brother were attacked by members of the Sunni militant group, the Sipah-i-Sahaba Pakistan (SSP), on 7 January 1995 as was suggested by the Applicant's middle brother in his own application for a protection visa and as the Applicant purported to confirm at the hearing before me. I have rejected, in a separate decision the Applicant's brother's claims that he was involved in a Shia Muslim extremist organisation, the Tehrik-i-Nifaz-i-Fiqah-i-Jaffaria (TNFJ) or its student wing, the Imamia Students Organisation (ISO), not least because of the Applicant's evidence at the hearing before me in the present case that his family are Sunni muslims, not Shia Muslims. I do not accept, therefore, that the Applicant has a well-founded fear of being persecuted as a result of his relationship with his brother or his brother's claimed involvement in extremist religious organisations." 34 It was said on behalf of Arshad that that was a conclusion evidencing pre-judgment of Arshad's case by reason of the conclusion reached in relation to Amjad's case. However, a fair reading of that passage indicates quite the contrary. The Tribunal was in effect saying that it accepted Arshad's evidence, which is in conflict with Amjad's, that the members of their family were Sunni Muslims and that it was not credible to accept that Arshad and his younger brother were attacked by members of a Sunni militant group." 35 It is significant that section 476(1)(f) refers not to apprehended bias but to actual bias. In other words, it is not sufficient to establish that there might have been a reasonable apprehension of bias on the part of the Tribunal by reason of its considering both Arshad's and Amjad's cases together. When the Act uses the expression "actual bias", it requires that the Tribunal has, at least in some respect, pre-judged the case so as to be unable or unwilling to decide it impartially. Actual bias need not be confined to an intentional state of mind. It may be subconscious, 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: see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127. Actual bias exists where the decision-maker has pre-judged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. See Sun (above)at page 134. 36 The determination of whether actual bias has been shown must depend upon the context of the hearing as a whole, including all the material before the decision-maker. It may be that material before a decision-maker gives rise to preliminary views about the merits of an application under consideration or some aspects of it. It is appropriate, and indeed it may be necessary in those circumstances, for the decision-maker to draw to the attention of the person seeking the decision those views and to invite comment on or in response to them. 37 The decision-maker must of course remain willing to be persuaded that such preliminary views should be departed from in the light of the response and any other relevant information: see Asif v Minister for Immigration and Multicultural Affairs [1999] FCA 1487 at paragraph 10. That process was undertaken by the Tribunal in this case. Of course, bias is not synonymous with the absence of good faith. A person may, in all good faith, believe that he was acting impartially although his mind may nevertheless be affected unconsciously by bias: see Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported). 38 Essentially, the only matter that is relied on as giving rise to an inference that the adverse decisions on the matters to which I have referred are the result of actual bias, is the conclusion reached by the Tribunal in dealing with Amjad's case. The reasons in Amjad's case are detailed and run to in excess of 37 pages. They consist of a detailed analysis of the material before the Tribunal and the reasoning that led to the rejection of Amjad as a credible witness. The mere fact that the Tribunal considered the case of Arshad's brother does not of itself give rise to an inference that the Tribunal came to Arshad's case with a closed mind or that the matters upon which Arshad was required to comment were matters in respect of which the Tribunal was unpersuadable. I do not consider that this ground has been established. 39 It follows in my view that the application should be dismissed. I propose to order that the applicant pay the respondent's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Applicant: Mr S Diab for John Maait & Co.

Solicitor for the Respondent: Mr M Allatt for Australian Government Solicitor