Minister for Immigration & Multicultural & Indigenous Affairs v SBAN

2. The judgment under appeal is set aside and in lieu thereof it is ordered that the application be dismissed.

3. The respondent pay the appellant's costs of the appeal and at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

2. The judgment under appeal is set aside and in lieu thereof it is ordered that the application be dismissed.

3. The respondent pay the appellant's costs of the appeal and at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT HEEREY AND KIEFEL JJ: 1 There are before the Court three appeals by the Minister against judgments which set aside decisions of the Refugee Review Tribunal (RRT): SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591, WAAK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 86 and WAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 191. 2 The RRT had in each case affirmed a decision of a delegate of the Minister not to grant the applicant (now respondent) a protection visa. The RRT was not satisfied that the applicant was, as required by s 36(2) of the Migration Act 1958 (Cth) (the Act), a person to whom Australia has protection obligations under the Refugees Convention. The RRT was not satisfied that the applicant had a well-founded fear of being persecuted in his country of nationality for reasons of race, religion, nationality, membership of a particular social group or political opinion. 3 In each case the court below, in one instance a judge of this Court (in SBAN), and in the other two, Federal Magistrates, held that the decisions of the RRT were made in bad faith. As a consequence, judicial review was not prevented by s 474(1) of the Act because one of the preconditions established in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 to the validity of the decision had been found not to exist. 4 Section 474(1) provides: "A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 5 The decisions of the RRT set aside by the judgments under appeal were made in the exercise of the power conferred by s 415(2)(d) of the Act. It is accepted that they were "privative clause decisions" and thus subject to s 474(1). Read in the light of Hickman, the effect of s 474(1) is to extend the power of the RRT in such a way that the lawfulness of its decision is beyond question provided that (i) the decision is a bona fide attempt to exercise the power, that (ii) it relates to the subject-matter of the legislation and that (iii) it is reasonably capable of reference to the power given to the RRT. 6 The present appeals concern primarily the first Hickman proviso, the absence of good faith or what can be regarded as the same thing, the presence of bad faith.

Bad faith 7 In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 a Full Court reviewed the case law on bad faith in the context of s 474(1). We adopt what their Honours said at [43] - [47], but with this qualification to the ninth proposition at [48]. 8 As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty. 9 Questions of professional ethics arise. An allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19], cf Federal Court Rules O 11 r 1B. 10 Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71] - [72]. Apprehended bias, resting as it does on what may be observed objectively, as distinct from the actual state of mind of the decision-maker, is quite different. While it has been suggested that actual bias may occur subconsciously, that would not establish bad faith in the relevant sense for the purposes of s 474(1): NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [4], [113]-[115], [638] and [648]. 11 In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s 425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.

Is the appeal moot? 12 The decision of the judge of this Court which set aside the decision of the RRT was given on 10 May 2002. An appeal was instituted on 28 May 2002. However on 4 September 2002 the respondent signed a document addressed to the Department in which he said: "I understand that I have won my case in the Federal Court and since the DIMIA has appealed this decision, I wish to discontinue the appeal process in the Australian courts and return to my country voluntarily." He was removed from Australia on 25 September 2002. 13 As a consequence the respondent's solicitors have ceased to act for him. At the hearing before us Mr Gordon Barratt QC and Mr Simon Ower were given leave to appear amici curiae. They conceded that because of the decision of the primary judge the respondent would theoretically be able to bring a further application for review of the decision to the RRT pursuant to s 412. However, as they pointed out, s 412(3) provides that an application for RRT review may only be made "by a non-citizen who is physically present in the migration zone when the application for review is made." Furthermore, s 36(2)(a) provides that one criterion for a protection visa is that the applicant for the visa is a "non-citizen in Australia". They submitted therefore that the appeal was no longer competent, there being now no justiciable controversy. 14 In our opinion, there is a sufficient "matter" within the meaning of Ch III of the Commonwealth Constitution for determination in a legal proceeding. The Court is not being asked merely to give an advisory opinion: Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. While it is true that the prospects of the respondent changing his mind, returning to Australia and making a further application to the RRT are extremely remote, they remain theoretically open. Indeed, strictly speaking, there would not in those circumstances be a further application. The effect of the judgment below is that the decision of the RRT is a nullity; the respondent's original application for review by the Tribunal has not yet been validly determined. There appears to be no provision in the Act imposing a time limit during which reconsideration by the RRT pursuant to court order must take place. In any case, as long as the judgment remains on the record there is a finding of serious personal fault against a member of the RRT. The Minister has a tangible interest in seeking to have that finding reversed by an appellate court. There is also the question of the order for costs, although as the respondent was not represented before the primary judge the amount of such costs is likely to be minimal and limited to out-of-pockets such as photocopying and telephone calls. There is no evidence as to whether such costs were in fact incurred, or likely to have been incurred. 15 Mr Barratt referred to a number of American authorities on the issue of "Cases" and "Controversies" under Article III of the United States Constitution: Lewis v Continental Banking Corporation 494 US 472 at 480 (1990), Darmond v Charles 476 US 54 (1986) at 71, Liu v Immigration and Naturalisation Service 274 F 3D 533 (2001). But the High Court has said that because of the text of the United States Constitution and the somewhat different role of the Executive in that country, United States decisions are not of assistance in this area: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at [21] and [119], Re McBain; ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1 at [3].

Respondent's claims 16 The respondent is a 32 year old male Iranian national. He arrived in Australia on 20 April 2001. On 24 July 2001 he applied for a protection visa. The Convention ground relied upon was that of imputed political opinion as an opponent of the Iranian regime. A delegate of the Minister refused the application on 29 August 2001 and the respondent sought review by the RRT. 17 The respondent told the RRT that until he left Iran he lived with his mother and brothers and sisters. He had no particular problems with the authorities until an event which happened in September 2000. At about 10.30 one evening he was walking in public with his girlfriend when he was approached by police and two members of the Sisters of Zainab (Officers of Observing Islamic Appearance) who asked whether he was married to the girl. The respondent and his girlfriend were asked for their identity cards. They did not have their cards with them. They were asked to go to police headquarters nearby. One of the Sisters of Zainab took hold of the respondent's girlfriend and the respondent moved to intervene. He felt a kick in the back and on turning around saw a police officer reaching for his gun. The respondent pushed the officer away. The officer fell backwards and was knocked unconscious. The respondent and his girlfriend fled the scene. He went home, collected some belongings and went to a nearby town. From there he obtained a passport illegally and left Iran, eventually arriving in Australia. 18 On the day after the incident police officers came to the respondent's home and told his mother to tell him to report within twenty four hours. The respondent made some enquiries of a friend who was a police officer. The friend told him that the police had been looking for him as the handgun of the police officer involved in the incident was missing and the respondent was being held responsible for it. The friend advised him to leave the country promptly. After leaving he telephoned the friend from Thailand and Indonesia and was told that he had been accused of being involved in anti-government political activities because he had left the country illegally and because the hand gun had not been found. The respondent told the RRT that the missing gun was the most serious matter because, on the basis of information provided to him by his friend, the authorities had taken a view that he was involved with the opposition Mujahedin and had delivered the gun to them.

RRT decision 19 The RRT accepted that there are laws and mores in Iran in relation to men and women being seen in public together. However, contravention of those laws and mores would not amount to persecution for a Convention reason, they being laws of general application. If on being questioned for breaching such laws the respondent ended up in a fight, that was not related to any Convention ground, but rather to the normal laws about public order. The RRT noted that the respondent had emphasized the missing gun as his main reason for concern. However, the RRT thought it "fanciful" that the authorities might relate the loss of the gun to the Mujahedin. It was "absurd" that the fact that the gun went missing in the course of a dispute between the respondent and some officers for observing Islamic appearance could be related to a political opinion. The RRT rejected the submission that the respondent's problem stemming from the gun gave rise to a fear of persecution for a Convention reason. The RRT also found that a political association of the respondent's brother would not give rise to any imputation of political opinion. The respondent's illegal departure and his applying for refugee status would not, in the light of country information received by the RRT, cause the respondent any Convention related problems which could be said to amount to persecution. 20 The RRT referred in its reasons to two unsigned documents in the form of statutory declarations by the respondent's mother and one AB. In the first of these the respondent's mother stated that he came home about 11 or 12 o'clock one evening last September, packed some clothes and hurriedly left, saying that he was in trouble. About 25 minutes later Revolutionary Guards came to the house looking for him (On the respondent's account, the visit was on the following day). They searched the house and took away his passport. Thereafter they telephoned the house "on a daily basis" asking after him. They said there was a problem because a gun went missing in the incident between the respondent and the religious police. 21 In the other document AB said that he worked in the National Security arm of the Iranian government. He stated that the loss of the gun issued by the authorities was a very serious matter and that it "automatically becomes a matter involving the Security Army [sic] of Government and the fine for stealing a gun from the Authorities could be death by hanging". He had been told that as the gun had not been located or returned it was believed that the respondent had given it to the Mujahedin. He had told the respondent that it was a very serious matter and because of the loss of the gun the government had taken the view that he was involved with an opposition party. He had told the respondent that the penalty for taking a gun and delivering it to the opposition could be death by hanging. AB was "completely convinced" that if the respondent returned to Iran he would be prosecuted because of the government's belief that he was involved in political activities even though that was not in fact the case. 22 The hearing before the RRT was on 23 October 2001. On 13 November 2001 the respondent's solicitors sent a letter to the Tribunal stating, amongst other things, that at the hearing they had said that the statements by the respondent's mother and AB would be sent to Iran to be translated, checked and signed but the statements had "not as yet been received". The solicitors' instructions were that AB had been posted by the government to near the border of Iran and Afghanistan and would not be returning for some months. Efforts were being made to contact him. The letter contains a substantial argument of the respondent's case, extending over seven pages. However, it does not in terms seek a delay of the decision until the two declarations have been returned from Iran. 23 In its reasons delivered on 28 November 2001 the RRT referred to the letter of 13 November 2001. It said that the solicitors - "refer to the signatures for the unsigned statutory declarations of those in Iran, that is the applicant's mother and (AB), not being available. The implication is that the signature of (AB) will be difficult to obtain as he has been posted by the Iranian government to the border between Iran and Afghanistan. In any event as the applicant is in detention the Tribunal is unwilling to await such signatures. More than a month has already passed since the hearing." 24 At a later stage in its reasons the RRT said: "The Tribunal indicated above that it was not prepared to wait for the statements to be signed. The Tribunal has found that the applicant's problems if he has any are not Convention related and it follows from this finding that there is very little to be gained from waiting for further material as such material would rarely if ever affect such a finding."

Decision under appeal 25 The trial judge found that the RRT member had discharged his function with a closed mind and therefore with actual bias. This finding was based on the approach of the member to further evidence in the form of signed statutory declarations from the respondent's mother and AB. 26 His Honour's reading of the passage from the RRT's reasons already quoted at [24] above was that it had declined to give the respondent further time to have the statutory declaration signed - "because it had concluded that his claimed problems were not Convention related. Consequently, very little would be gained by that material being signed as it would 'rarely if ever affect such a finding'. It has indicated therefore that that material, even if signed and even if true, would not affect its decision." (at [24]) 27 His Honour (at [25]) thought that approach wrong because it was impossible to understand how such evidence could be ignored. 28 His Honour said that the RRT's approach to the additional material had persuaded him that it did not approach the respondent's claim with a mind open to persuasion. It did not reject the material because it was unsigned or because its apparent significance was outweighed by other considerations. His Honour said (at [27]): "It rejected that material because, even if signed, it would make no difference to the outcome of the application. And it would make no difference because, as the Tribunal said, its content would not alter the Tribunal's assessment made already that the applicant's claim about being attributed with an anti-government political opinion was "absurd". But that material, as I have indicated above, was directly relevant to the claim. If it were accepted as reliable by the Tribunal, it would clearly be relevant. Indeed, if authentic, information such as that provided by the applicant's friend from the National Security arm would be directly and highly relevant to the determination of his claims. It must be a rare case where individual claims such as those of the applicant are able to be supported by such evidence." 29 His Honour concluded therefore that the RRT was actually biased against acceptance of the respondent's claim. This conclusion was said to be based "upon what the Tribunal has said and not upon inference from the circumstances …" (at [28]). The RRT's approach disclosed that it had not exercised its function in good faith. Its reasons excluded the possibility that its bias was unconscious (at [29]). 30 His Honour criticised a number of other aspects of the decision including the finding that the imputation of political opinion because of the accusation of stealing the gun was "absurd". Nevertheless his Honour found that but for the RRT's approach to the additional material he would have concluded that the approach to the respondent's claim was not one which demonstrated a lack of good faith.

Conclusion on the appeal 31 His Honour's conclusion seems not to have been based on the RRT's decision not to delay a decision until signatures to the two statements had been obtained. (As already noted, it is doubtful whether the respondent's solicitors even asked for this.) Rather, his Honour's view was that the RRT had reached a conclusion which was incapable of alteration, even by evidence which, if genuine, was very cogent in the respondent's favour. 32 But the RRT did in fact take the two statements into account. It summarised them in its reasons. It did not ignore them. It did not reject them on the ground that they were unsigned. The RRT was not bound by technicalities, legal forms or rules of evidence: s 420(2)(a). Even so, failure to accept any particular piece of evidence is not an error of law and would not found judicial review, even under the Act as it stood prior to the introduction of s 474. In essence, the RRT reasoned that the fact that a police officer's gun had disappeared when the respondent became involved in a scuffle with police in the course of their enforcing a law of general application could not rationally give rise to a belief that the respondent was assisting an opposition movement, either by providing the gun to them or otherwise. As a matter of law, that was a conclusion the RRT was entitled to come to on the facts, notwithstanding the evidence of AB and the respondent's mother. Even if irrational or against seemingly strong evidence or unsupported by adequate reasoning, such a conclusion was within the RRT's power, as the law now stands. Nor is it an indication of actual bias that the RRT thought that the provision of signatures to statements of witnesses which it had rejected was unlikely to change its views and at the same time was likely to prolong proceedings indefinitely for an asylum seeker in custody. 33 The problem with his Honour's analysis is that it assumes a linear approach in which the RRT reaches an unshakeable conclusion and then rejects the two statements. But a decision-maker is not obliged to deal with material in any particular sequence. It is open to the decision-maker to accept evidence A and then, as a consequence, reject contrary evidence B. Nor is a decision-maker obliged to attach a higher level of importance to one part of a fact-finding process (such as the acceptance of a witness) than to another (such as a finding that an account is inherently unlikely). The RRT might have taken the converse approach. The member might have said that although he thought the loss of gun/imputed political opinion scenario unlikely to the point of absurdity, nevertheless he accepted the unsigned statements of the respondent's mother and AB. But rightly or wrongly the RRT put greater store on its own views as to the inherent unlikelihood of the respondent's claims than to the evidence contained in the two statements. This does not amount to actual bias or bad faith.

Orders 34 The appeal will be allowed and the judgment appealed from set aside. In lieu thereof it is ordered that the respondent's application be dismissed. It is further ordered that the respondent pay the Minister's costs of the appeal and at first instance.

WAAK 35 The respondent is a 31 year old male Iranian national. He arrived in Australia on 23 March 2001. On 6 July 2001 he applied for a protection visa. The Convention ground relied on was that of imputed political opinion as an opponent of the Iranian regime. On 9 August 2001 a delegate of the Minister refused to grant the visa. The respondent sought review by the RRT.

Respondent's claims 36 The respondent claimed that up until 1998 he worked as a truck driver. Finding this occupation uncongenial he set up a video filming business with a friend. The business ran successfully for about 11 months until one day he and his friend went to a wealthy private home to film a children's birthday party. At the party there was consumption of alcohol by adults and dancing by women not dressed in Islamic clothes. Police arrived at the party and arrested him, along with everybody else. He was detained for five days and sentenced by a court to seventy-five lashes, a sentence which was carried out in public. 37 Some time later the respondent and his friend turned to making a pornographic film in which actors dressed as Islamic clergymen performed sexual acts. He said that he was involved in this film as a way of "getting back" at the clergy for his conviction and sentence in relation to the filming of the birthday party. The film became popular and they commenced to make a second one. But he learned that a photographer who worked on the film had been arrested and that the authorities had searched his house. His brother arranged for a smuggler to get him out of Iran into Pakistan.

RRT decision 38 In relation to the lashing the RRT said: "I am reluctant to accept the credibility of the applicant's evidence in this matter. The applicant claimed to have been lashed, but there were no marks or scars attributable to lashing on his back or neck. He had no explanation as to why there were no marks. He claimed to have been lashed some time in 1999. It would be expected that if the applicant had been lashed as he claimed, there would be scars or marks visible." 39 The material before the RRT included a record taken by an Immigration Department official of an interview with the respondent on 2 April 2001 which referred to the birthday party incident and continued: "A. Because we all had a few drinks the [sic] beat us and because were [sic] drunk they took off our clothes and poured cold water over us. For five days we were detained. We were sentenced by a court to 75 lashes. Q. Why didn't you have the lashes? A. I did have the lashes in 1999. Q. Can you show me? - showed his back - no scarring, no marks." 40 The transcript of the video conference hearing before the RRT on 7 September 2001 records the following: "RRT: Now is it the case that you have no marks or scars on your back or on your body from being lashed, Mr (WAAK)." Applicant: No, they're not there. RRT: How can that be Mr (WAAK). If you were lashed 75 times and it was done just two years ago, how is it there could be no marks or scars on you, from such a lashing? Applicant: I don't know, you can look for yourself. RRT: Yes, would you mind standing Mr (WAAK) and remove your shirt, would you like to do that to let me see for myself? (Camera was moved to focus on back). Am I correct in saying that there are no marks or scars on his back? Hearing attendant: There are some marks up there which are quite fine lines. I really don't know what lash marks look like, but there are some fine lines in those areas. RRT: OK, thank you, thank you Mr (WAAK)." 41 In its reasons the RRT said: "It was put to the applicant that the immigration officer during the initial interview had inspected the applicant's back and detected no marks or scars. The applicant was asked how that could be if he was lashed if claimed. The applicant agreed there were no scars or marks, and he did not know why that was so. The applicant was requested to remove his shirt and the hearing officer inspected the applicant's back and neck. She reported that there were no apparent scars or marks that would be consistent with being lashed visible on the applicant's back and neck. There were, however, several finer recent marks on the applicant's neck and lower back. It was apparent that the applicant had no marks or scars on his back and neck that would be consistent with being lashed." 42 The RRT did not accept that the birthday party incident and the subsequent lashing happened. It described the respondent's evidence about the incident as "generalised, lacking in detail and implausible". It referred to the lack of scars or marks on his back which undermined the credibility of his evidence in regard to what was done to him by the authorities. It concluded that the incident was fabricated. In any case, even if the claims had veracity the respondent would have been punished as a result of the non-discriminatory enforcement of a law of general application. As to the pornographic films, the RRT was reluctant to accept the credibility of the respondent's evidence. Since it was unable to accept that the birthday party incident happened, it was unable to accept that it provided a motivation for investing in pornographic films. If indeed the respondent had invested in such films at all, it was not for any political and anti-regime sentiments or revenge upon the clergy. Again the respondent's account of his investment activities with respect to the production of films was generalised, lacked detail and understanding of the processes and appeared implausible. The RRT considered the whole incident was fabricated. Again, any punishment for his involvement in that activity would have been as a result of an application of a law of general application.

Decision under appeal 43 The Magistrate found that the RRT's decision disclosed pre-judgment on the issue of the respondent's credibility "stemming from the conclusion of the presiding member that the applicant had not been lashed as he claimed". His Honour's reasoning was as follows: "Before examining the applicant's back the presiding member knew that a previous examination by a departmental officer had revealed no marks and that the applicant had volunteered that no marks remained. The presiding member took into account the observation of marks on the applicant's back by the court attendant. The presiding member found that these marks were recent and not consistent with the alleged lashing. Critically, however, the presiding member attributed to the court attendant an assessment of the marks that the court attendant did not make. In all probability, the view attributed to the court attendant was the presiding member's own view. In my view the presiding member expected to see no marks and had already formed the view that the applicant had not been lashed as he claimed. There was a distinct possibility that what the court attendant observed was the remnant of the marks of the lashing but the presiding member ignored or discounted that observation, not considering it worthy of further enquiry." 44 The Magistrate said: "In the circumstances I am bound to conclude that the RRT decision was not a bona fide exercise of the RRT's powers, because the decision was infected by pre-judgment on a fundamental issue of credibility."

Conclusion on the appeal 45 It was accepted before us, and presumably would have been known to the Magistrate, that in the ordinary course the RRT member would have written the reasons for decision without the benefit of a transcript. So, to the extent that the member conflated his own impression with his recollection of what the hearing attendant had said, that is understandable. 46 The Magistrate's reasoning shows a misunderstanding of the fact-finding process. As a decision-maker, or a court for that matter, works through evidence conclusions may be formed as to the reliability and cogency of various pieces of evidence. It may well be that the RRT member "expected to see no marks". This would be hardly surprising since (a) the immigration officer had seen no marks back in early April 2001 (the RRT hearing was on 7 September 2001) and (b) the respondent himself said there were no marks. But, far from suggesting pre-judgment, the fact that the RRT member took the further step of seeking to inspect the respondent's back (at the respondent's invitation) and asked for confirmation of his observations by the attendant demonstrates a willingness to reconsider the observations which had already been made. If the RRT member misstated the observations of the hearing attendant that was at worst an error of fact. 47 In any case, the absence of marks were but part of the RRT reasons which also included its view as to the inherent unlikelihood of the incident occurring and the fact that, even if it had, the respondent's problems arising therefrom would involve the imposition of a law of general application.

Orders 48 The appeal will be allowed and the judgment given appealed from set aside. In lieu thereof it is ordered that the respondent's application be dismissed. It is further ordered that the respondent pay the Minister's costs of the appeal and at first instance.

Respondent's claims 49 The respondent is a 30 year old male claiming to be a national of Iran. He arrived undocumented in Australia on 19 June 2000. On 12 February 2001 he applied for a protection visa. The Convention ground relied on was membership of a particular social group, namely homosexuals in Iran. On 2 April 2001 a delegate of the Minister refused the application and the respondent sought review by the RRT. 50 The respondent started his working life in a chandelier factory. Between 1992 and 1994 he undertook military service. After a period of unemployment he then worked in his father's supermarket from August 1995 until April 2000. After having been discharged for a year and working for his father in the supermarket he left Iran by air on 2 April 2000 and travelled to Malaysia on a valid passport before travelling to Australia by boat. 51 The respondent said that when he was aged ten he was sexually penetrated by a friend of his father who visited the father's shop. The respondent claimed he enjoyed this experience and continued a sexual relationship with the man. He met another boy at school who was four years older and they had sex in private places over a period of many years. When working at the chandelier factory he entered into a sexual relationship with the factory's supervisor but he was caught in the act one day and dismissed. He then started his compulsory military service. During his time in the army he entered into a relationship with another soldier. This relationship was not discovered and the respondent was promoted to sergeant. After the army and a year's unemployment he returned to work in the family supermarket. When it was empty he had sex in the store with a man he met there. One day his father discovered them and beat him. This was a few years before he left Iran. He claimed that he had seen and heard how homosexuals are treated in Iran's Revolutionary Court stating that sometimes the death penalty was carried out by throwing convicted men off mountains. The RRT noted that this was not supported by any independent country information. The RRT said: "The information provided by the Research Director of Canada's Immigration and Refugee Determination Board, for example, makes no mention of such a spectacular penalty, leaving the Tribunal to wonder how all the Human Rights agencies ever missed it. It also left the Tribunal wondering how, since the age of eighteen (in 1990) the applicant could possibly have witnessed, either directly or via the media, the execution of anyone in Iran for reasons of homosexuality alone." 52 In about March 2000 the respondent had a noisy row with his father in the family store. His father accused him about his sexuality and neighbours came to see what the fuss was about. The neighbours all turned on him but he was able to run away because the shop was crowded. He hid at a friend's place. 53 The respondent's father and brother then went to the Revolutionary Court to lodge a complaint against him. The RRT noted that no sexual act was said to have been witnessed. The respondent claimed that a cousin was co-opted into the matter as a third witness and this triggered a police search for him. The first place they looked, according to the respondent, was the paternal home he had fled the day before. The RRT said: "This seemed odd to the Tribunal, given his father's position as a witness to his disappearance." 54 The respondent's mother gave him money to go abroad and sent him his passport.

RRT decision 55 Much of the Magistrate's criticism of the RRT's decision was based on its choice of language. For the purposes of discussion it will be necessary therefore to set out some passages from the RRT's reasons. Those parts the subject of the Magistrate's criticisms will be indicated in bold. Emphasis by the RRT itself will be non-italicised. 56 The RRT accepted that male homosexuals in Iran constitute a "particular social group" within the meaning of the Convention. 57 The RRT said: "The Tribunal does not accept on the country information available to it that a man who regards himself as one or other kind of homosexual in Iran, and/or who is suspected by others of being the same, would face a real chance of being persecuted unless caught performing sexual acts, such as but not exclusive to sodomy, with another man. Even if he were caught, it would have to depend on who caught him and in what circumstances. Taking the Applicant's claims at face value, it was usually his own or his partner's parents doing the 'catching' and they never took the discoveries outside the family, a fact, by the way, that appears to make the Applicant's father's last act of denunciation seem highly out of character. The 'persecution', if it can even be called that, in the respective instances of Yaqob and of the Applicant's family's supermarket helper, was short-lived and contained to a beating from the Applicant's father, as well as a period of ostracism. In the great scheme of things a beating or two from one's father is very harsh, but the Applicant also described a man who was sick and old, and who has not beaten him again since a claimed discovery some years ago, and on that occasion only briefly. The so-called 'persecution' in the instance of the affair with the chandelier factory workshop supervisor resulted in nothing more than being shut out of the factory. That is harsh treatment, to be sure, leaving one without a job until he or she can find another. However, it is not persecution for the purposes of the Convention. Businesses 'fire' people; they do sometimes simply because they can. Just because the Applicant was 'fired' over a relationship with his supervisor does not make his 'firing' persecution. In all instances, the evidence shows, the Applicant generally found somewhere else to live and/or work and get on with things, quite often in the close and voluntary company of the people he originally offended. He seemed to find sexual partners wherever he worked and never had to resort, say, to parks at night or other entrapment risks. He did not subsist at society's margins. Putting aside, for the moment, the Applicant's claim about his father's late act of denunciation, just days before he left Iran, his evidence repeatedly indicates that he did not face persecution simply for reasons of being caught in the act of sexual relation with other males. He only ever faced passing periods of conflict and social strain. The Tribunal concludes that the Applicant should by now have learned not to do it in shops and factories or in apartment basements, and he no longer has to risk exposure in the army, for he has long since lived as a civilian. He is an adult and capable of renting his own premises. The independent evidence argues very persuasively that he would be able to conduct sexual relations with other men in private places such as his own home or in the homes of others. In his own evidence about Yaqob he was able to sustain a sexual relationship in private for many months even when he was a teenager. The Tribunal is therefore not satisfied that the Applicant faces a real chance of persecution in Iran merely for being homosexual or for seeking homosexual relations in that country. The Applicant's position is, of course, that matters have now gone too far to allow him simply to return to Iran and discreetly take up life there as a homosexual male. He claims his cover is irrevocably blown by his father, that the police and Revolutionary Court have been brought in and that all these parties await his re-appearance in Iran in order to take up where they left off, bringing him to justice that could involve even the death penalty. He has presented a document that he says confirms all this." 58 The RRT then discussed some discrepancies as to the dates of the respondent's departure from Iran and continued: "Meanwhile, the Applicant's father's action on this occasion appears, as noted above, quite out of character with his behaviour on earlier occasions. The Applicant claimed that when his father was confronted with his sexual activities in the shop, he simply acted more or less as he did on the earlier occasion when the Applicant was caught with Yaqob: getting furious, beating him and throwing him out of home. It does not ring true that he waited several years before bringing the authorities into the matter, let alone on an occasion when, as shown in his written statement, the Applicant was not actually having sex with anyone. No matter what the Applicant says about the neighbours witnessing the argument, their presence there does not satisfactorily argue the extremity of his father's act in walking off to court, gathering family witnesses and briefing them along the way, airing his dirty laundry in public, as it were, and putting together, to his best ability in the time available, a case for his son to receive the death penalty. That all this is, in one or two versions of events, supposed to have happened during the Nowruz holiday, when shops are closed and courts are also closed, puts very great strain on reasonable levels of credulity. And yet, the document tendered by the Applicant on 14 May 2001, purporting to be some kind of official memorandum, or communiqué, from the police to the Revolutionary Court about the Applicant's 'sodomy case', appears to argue that the denunciation did occur and that the authorities were following it up." 59 The RRT then records a number of criticisms of the document. First, the document reports a police visit to the respondent's home on 6 April 2001, a visit the respondent claimed to have heard about the next day over the telephone. That conversation would therefore have taken place on 7 April yet he claimed to have departed Iran no later than 2 April. Secondly, the document refers to an "unnumbered referred order" from the Revolutionary Court. The RRT thought it "inconceivable" that that court would issue "unnumbered" orders. Thirdly, the document reported that the police were guided to the respondent's family home by the "complainant". Since the complainant was allegedly the respondent's father who would know that the respondent had already fled, taking the police there would appear to have been pointless. Fourthly, the respondent failed to satisfy the RRT that what appeared to be an internal document should ever have been available to any member of his family, even to his father. The RRT recorded that it sought the opinion of an independent expert who consulted other experts located in a relevant Australian post abroad. The opinion was that that document was fraudulent. The RRT continued: "The Applicant's evidence regarding the authorities' response to his father's hot-headed denunciation is plainly at odds with independent country information. As the Applicant puts it, the authorities appear to have acted as though there were only one defendant in this case. Sodomy takes (at least) two. There is no evidence, for example, of the Applicant's father having directed the authorities to anyone else's address, not even for questioning. Three witnesses simply calling a person a homosexual appear to have no law in Iran under which to bring a case against him. Being only three men, they do not even have the competence, let alone in the absence of a co-defendant four reputable witnesses to an act of sodomy between, say, two identified men, might have a case." 60 The RRT concluded that the documentary evidence of the "sodomy investigation" against the respondent was "totally fabricated". It concluded that the document was falsified evidence of an event that never occurred. Even if it were wrong as to this, it was satisfied on the basis of country information that the accusations of the respondent's father, whatever they were, would not be sufficient to lead to a conviction of the respondent. This was not only because of the lack of four witnesses to an actual alleged act of sodomy, but also to the evident lack of attention in Iranian courts to sodomy cases over the last ten years. The RRT considered that the respondent invented the story of the fight with his father in the week before he departed Iran to lend to the story of his departure a sense of urgency. Further the RRT considered there were discrepancies in the accounts given of his first sexual encounter with the friend of his father. The RRT said "…it still seems odd that the Applicant, in spite of all the fear and shame, nevertheless repeatedly found intimate, exclusive and often quite long term sexual partners within every institution with which he was associated since the age of ten: his father's circle of close friends, his school, the chandelier factory, the army and his father's shop." 61 The RRT was "strongly struck" by the fact that the respondent appeared to have no knowledge or familiarity with the "world" of male homosexuals in Iran. He showed no familiarity with the culture of homosexuals in Iran such as practices referred to in the IRBDC reports, the parks, the underground networks etc. The RRT said: " The Tribunal has already acknowledged that there is no tried and true test for establishing an individual's innermost personal convictions. A person can boast a political opinion and articulate it in a most unconvincing way and yet be utterly sincere. The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt's tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. There are always political, social and potentially intangible cultural considerations to take into account. However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant's part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him. In his evidence, absolutely nothing in the world speaks to him in his claimed isolation from Iranian society. It is strange that a purportedly isolated and ostracised person does not even appear to have looked for such things. The Tribunal stresses that it was not looking for evidence of engagement with 'high culture'. The Tribunal put all of these elements together: the inconsistencies about the first sexual experience; the uniformity of the relationships and of most of their conclusions; the complete absence of a 'gay' circle of friends; lack of evident contact with the 'gay' underground; lack of other forms of identification. Cumulatively, and in some instances on their own, these elements strongly argue a lack of reality. Of albeit less significance, the Tribunal notes that other potential indicators of life's realities are also missing from the Applicant's account: whilst he found fulfilling partners at every stage of his career, his evidence shows no unrequited attractions, no unwelcome suitors, no mistakes. Even ignoring this, his story is simply unbelievable. The Tribunal has taken care to consider the Applicant's claims in the underlying assumption that he has had exclusively homosexual contact in the past and may well desire it in future, but the Tribunal is not at all convinced in this assumption. Taken as a whole, the evidence it has heard from the Applicant does not leave it remotely confident in concluding that he is homosexual." 62 The RRT further noted the discrepancy between the respondent's claims before the hearing and his initial interview which made no mention of homosexuality. The respondent had not provided an ultimately satisfactory explanation for the shift in claims. Finally there was the "single, strongest item of evidence" that the respondent was entitled to obtain a passport and use it to depart Iran legally.

The decision below 63 The RRT referred to the passages already indicated. The Magistrate implicitly accepted submissions on behalf of the respondent that the transcript and the reasons indicated that the RRT "approached the (respondent's) claims concerning his homosexuality with a closed mind or one that was not capable of persuasion" and had a "fixed view of the way homosexual men in Iran should relate". The Magistrate also referred to an extract from the transcript of the hearing before the RRT in these terms: "12. The views expressed above are the major subject of these reasons for judgment but it should not go unnoticed that they were made in the context of what appears to be a total lack of understanding by the applicant. The following is an extract from the transcript. Mr Hardy: Well I put it to you that this isn't something that you can switch on and off [a reference to the applicant's homosexuality], it's something that, particularly if it isolates you, it can take over your whole life. It can be the lens through which you see the whole world, if you're lonely enough as a result of, or feel isolated enough as a result of being different from other people … um here, sorry here's an example. Here's an example. If, if say, a famous Egyptian novelist wins the Nobel Prize, but he's also a homosexual who writes about, ah, you know, the love between two men. It mightn't be a big part of his story but it might be an element in the novel, right. Just say he gets banned in Iran, okay. Might not your ears prick up when you hear that that author has been banned in Iran, and you go, oh, yeah, that's another, that's just another case, just another problem. The applicant: I don't understand it. I'm sorry. Mr Hardy: … See, I have to make an assessment. I might even have to ask myself are you really gay? Are you a homosexual? … And, to be frank, I've asked this question so many times and in so many way, ah, I'm wondering why you haven't seized upon it already. You still seem to be not understanding.' 13. The applicant then gives a response which indicates that he believed his homosexuality was something which he was born with and was part of him to which the Tribunal responded: 'Mr Hardy: Okay, just, fine, I've got that. Just, in this part, just wind up your thoughts on that particular subject here.'" 64 The Magistrate then said: "22. The applicant submits that the Tribunal in reaching its decision was biased and therefore did not make a bona fide attempt to exercise its power. The Court is asked to infer actual bias from the reasons for decision of the Tribunal and the transcript of the hearing conducted by the Tribunal, at which the applicant gave oral evidence. I have read the transcript of the hearing before the Tribunal. Questions put by the RRT to the applicant indicate that the Tribunal member was highly suspicious about aspects of the applicant's claim. A reading of the transcript of the hearing suggests a pre-determination on the part of the Tribunal. There is clear evidence that the Tribunal member had preliminary views incapable of alteration regarding male homosexuals. 23. The existence of a closed mind is best illustrated by the questioning of the applicant as to his feelings about matters which the Tribunal regarded as sympathetic to or of interest to homosexual males. The questions, responses and conclusions drawn have been recited at [10] of these reasons. They reveal a pre-formed template into which the Tribunal considered all homosexual males would fit and that if an applicant who claimed to be a homosexual did not respond appropriately to these questions he must ipso facto not be a homosexual. This is not the same at the litany of jurisdictional errors found in the often cited passages from Craig v South Australia (1995) 184 CLR 163 or MIMA v Yusuf (2001) 180 ALR 1. It is an indication of a completely closed approach. There is nothing in the transcript or the reasons for decision to suggest that the Tribunal was prepared to accept the applicant as a homosexual in the absence of what it considered to be satisfactory answers to the questions. This closed mind, coupled with the nature and tone of the questioning and the conclusions reached from the responses received seem to me to clearly meet the criteria set by von Doussa J in SCAA quoted at [15] above."

Conclusion on the appeal 65 The Magistrate's conclusion that the RRT adopted a "completely closed approach" cannot be sustained. Where a claim for refugee status is based on grounds such as religion, membership of a particular social group or political opinion it is understandable that the RRT might test the veracity of the claim by reference to knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess. As a matter of common sense, this is a perfectly legitimate fact-finding technique for an administrative decision-maker. To take an example removed from the facts of the present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test this assertion by enquiring as to the applicant's knowledge of matters of Catholic doctrine, ritual, traditional belief and the like. It may be that the Tribunal member's understanding of such matters is in fact inaccurate. Or at the other extreme the Tribunal member may be correct but may assume a detailed knowledge that it would not be reasonable to expect of the average Catholic. These errors however would at worst provide grounds for criticism of the fact-finding process. They would not in themselves be suggestive of bad faith or the imposition of some illegitimate "template". 66 As to the "nature and tone of the questioning" by the RRT, we see nothing beyond matters of personal style, which are a matter for the individual member. The consideration the RRT gave to the respondent's claim was genuine and thorough. In particular, there is nothing to suggest that the RRT knew or suspected that the applicant would not be able to answer the questions now complained of. The respondent was not being trapped or set up.

Orders 67 The appeal will be allowed and the judgment appealed from set aside. In lieu thereof it is ordered that the respondent's application be dismissed. It is further ordered that the respondent pay the Minister's costs of the appeal and at first instance. I certify that the preceding sixty seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey and Kiefel.

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGES: HEEREY, MOORE and KIEFEL JJ

MOORE J: 68 I have had the benefit of reading the joint judgment of Heerey and Kiefel JJ in a draft form. I gratefully adopt their Honours account of the circumstances leading to each decision of the Refugee Review Tribunal ("the Tribunal"), what the Tribunal decided and the approach adopted by either the primary judge or the Federal Magistrate in disposing of the application for judicial review. I also agree with the orders their Honours propose for reasons which I briefly explain.

SBAN 69 I agree that the appeal in this matter is not moot notwithstanding that the successful applicant before the primary judge, SBAN, is no longer in Australia and therefore no longer eligible for a protection visa: see s 36 of the Migration Act 1958 (Cth) ("the Act"). The principal order of the primary judge was a declaratory order that the decision of the Tribunal was invalid and of no effect. There was also an ancillary costs order. It was not suggested in this appeal that the declaratory order did not operate in terms. Accordingly, the Tribunal now has before it an application for review which, by operation of s 348 of the Act, it is obliged to determine unless the declaratory order is set aside in this appeal. I do not consider that s 412(3) is relevant, as counsel originally representing SBAN in the appeal but now appearing amicus curiae submitted. That section provides that an application for review by the Tribunal can only be made, relevantly, by a person physically present in the migration zone at the time the application is made. The primary judge's order nullifies the decision of the Tribunal but the original application made by SBAN when he was in the migration zone remains undetermined. 70 Any review is likely to be perfunctory and formal. Unless SBAN returns to Australia (which is unlikely given that he has left voluntarily), the Tribunal will decide to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") because SBAN is not eligible for a visa. Nonetheless the Minister is entitled to seek to have the primary judge's declaratory order set aside in an appeal so that the Tribunal will not be required to discharge the duty imposed by s 348. For that reason, in my opinion, the appeal is not moot. Other considerations might arise if the appeal was founded only on the costs order which, as I apprehend it, is devoid of content in the sense that no costs are recoverable. The fact that the reasons for the decision of the primary judge reflected adversely on the member of the Tribunal is, in my opinion, irrelevant. An appeal under s 24 of the Federal Court of Australia Act 1976 (Cth) is against a judgment of a single Judge. In the present case that judgment is constituted by the declaration and the costs order. The appeal is not against the reasons: see Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45. 71 I now turn to consider the substance of the appeal. 72 I agree with much of the primary judge's criticisms of the Tribunal's reasoning. However I do not accept that the deficiencies in its reasoning ultimately warrants a conclusion that the Tribunal did not bona fide exercise its power of review. As his Honour the primary judge noted at [26] it was the approach taken by the Tribunal to the additional material (the unsigned documents taking the form of statutory declarations) which was decisive to his conclusion of lack of good faith. His Honour had earlier observed (at [25]) that it was impossible to believe how evidence from a person working in the national security arm of the Iranian government, and who had access to the Revolutionary Guard (who was apparently pursuing the applicant) could be ignored. This statement has the appearance of an acceptance by the primary judge that the unsigned statutory declaration was made by the person who purportedly made it and its contents were reliable both as to what the declarant said and what he had been told. However I doubt that his Honour intended to characterise the document in this way particularly given that he later identifies the steps the Tribunal should have undertaken to assess its authenticity, reliability and weight. 73 In my opinion, the statement of the Tribunal that "such material would rarely, if ever, affect such a finding" can be reasonably viewed as an intimation that it would not and did not give much weight to the unsigned statutory declarations. Understood this way it did take the unsigned statutory declarations into account in assessing the totality of the material before it as it is required to do. Whether, in doing so, it was acting entirely fairly or rationally does not, for present purposes, matter if its approach does not sustain an inference that it had a closed mind and a predetermined view about SBAN's claims. While the Tribunal's approach was comparatively dismissive of the evidence adduced by SBAN, it did deal with it and dealt with his claims more generally. The finding of bias, and ultimately of lack of good faith, of the primary judge can probably properly be characterised as a finding of fact inferred from, in this case, the reasons for decision of the Tribunal. A Full Court should defer to any inference drawn by the primary judge if two competing inferences are equally available: see Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 368 - 369. However, in my opinion, the inference drawn by the primary judge should not have been drawn for the reasons just given.

WAAK 74 In my opinion this appeal can be determined on a fairly narrow basis. In [29] of the Federal Magistrate's judgment, his Honour said: "[C]ritically, however, the presiding Member attributed to the court attendant an assessment of the marks that the court attendant did not make. In all probability the view attributed to the court attendant was the presiding Member's own view." 75 In the proceedings before the Federal Magistrate, the transcript of the hearing before the Tribunal was in evidence. It is clear from the Federal Magistrate's reasons that he acted on the assumption that the Tribunal had access to the transcript as well. It is unlikely that it did, but in any event, there was no evidence to indicate that the Tribunal had the transcript available. In my opinion, it was inappropriate to evaluate the approach taken by the Tribunal by reference to the transcript which plainly records what the court attendant said. If the Tribunal did not have the transcript, or at least if it had not been proved that it did, then the Federal Magistrate should have allowed for the possibility that the Tribunal was recalling what was said by reference to notes or an imperfect recollection. If that is to be accepted, then there is clearly scope for the Tribunal member to have said what he did if the notes or the recollection was faulty. The factual foundation for the conclusion of the Federal Magistrate that the Tribunal had not undertaken the review in good faith was not made out.

WAAG 76 While it may have been inappropriate for the Tribunal member to have used some of the language he did, I agree with the conclusion of Heerey and Kiefel JJ that the approach of the Tribunal does not establish that it did not exercise the power to review bona fide.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 18 December 2002 Counsel for the Appellants: D M J Bennett QC and M Perry

Solicitor for the Appellant in SBAN: Sparke Helmore

Solicitor for Appellant in WAAK Australian Government Solicitor

Solicitors for Appellant in WAAG Sparke Helmore

Counsel Amici Curiae in SBAN G F Barratt QC and S D Ower

Counsel for Respondent WAAK: H N H Christie

Solicitors for Respondent WAAK: Christie and Strbac

Counsel for Respondent WAAG G F Barratt QC with S D Ower

Solicitors for Respondent WAAG Refugee Advocacy Service of South Australia

Date of Hearing: 27 November 2002

Date of Judgment: 18 December 2002