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.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.