NAOX v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellants claim to be Bangladeshi homosexuals, who would face a real risk of persecution should they be returned to Bangladesh. 2 After long and extensive litigation, the Refugee Review Tribunal (the Tribunal), on the third occasion it had to consider the claims of the appellants, found that the appellants had fabricated their claims, and that they were not truthful or credible witnesses. The Tribunal also found that the appellants' witness lacked credibility and did not accept his evidence. The Tribunal found that the appellants were not homosexual and that they had not lived in a homosexual relationship. The Tribunal therefore found that neither would face persecution should they be forced to return to Bangladesh. The Tribunal rejected all of the appellants' claims. 3 This appeal by the appellants to this Court will be allowed. I am satisfied that the decision by the Tribunal on the third occasion the matter was before it was not made in good faith. 4 Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare. 5 I am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002). 6 The appellants are Bangladeshi nationals. They came to Australia, arriving on 19 February 1999. They sought protection visas on 4 March 1999, claiming that they were homosexuals who had lived together as a couple since 1994, and that they had been subjected to persecution in Bangladesh because of their homosexuality. 7 A delegate of the Minister for Immigration and Citizenship found, on 23 April 1999, that the applicant born on 1 July 1973 (NAOX, or the younger Bangladeshi), was a "citizen of Bangladesh", accepted "as plausible the applicant's claim that he is a homosexual", but was "unable to accept there is a real chance that he will be persecuted on that ground in Bangladesh". The delegate said: In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters. 8 The same delegate of the Minister found, on the same day, 23 April 1999, and in reasons almost identical to the reasons given in the matter of NAOX, that the applicant born 1 July 1953 (SZFSG, or the older Bangladeshi), was a citizen of Bangladesh, accepted "as plausible the applicant's claim that he is a homosexual" but was "unable to accept there is a real chance he will be persecuted on that ground in Bangladesh". The delegate also said, concerning SZFSG: In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters. 9 On 22 February 2001, the first Tribunal affirmed the decision not to grant visas. It found that they appellants were homosexuals; found that homosexuals cannot live openly in Bangladesh, and imposed the "discretion test". 10 On 26 July 2001, Lindgren J rejected an application under s 476(1) of the Migration Act 1958 (Cth) (the Act). His Honour said, at [17]: It is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems. 11 His Honour later said, at [19]: The applicants did not complain that they had to modify their behaviour so as not to attract attention. … Apparently, therefore, they lived together in the way they wished to do. In sum, in living together in the way in which they did, they were naturally "discreet" and not "open", according to the meanings those words had for the [Tribunal]. (case references omitted). 12 On 22 February 2002, the appellants' appeal to the Full Court of the Federal Court (Black CJ, Tamberlin and Allsop JJ) was dismissed. 13 On 11 October 2002, the appellants were granted special leave to appeal to the High Court of Australia. 14 On 9 December 2003, the High Court allowed the appeal, rejecting the "discretion" test, and remitted the matter to the Tribunal for re-determination. The matter had proceeded, from the decision of the delegate, to the Tribunal, the Federal Court, the Full Court of the Federal Court and to the High Court on the basis that the appellants were Bangladeshi homosexuals. The only live issue was whether they faced a real risk of persecution, a matter which involved considerations of whether there was a requirement for "discretion", and an enquiry as to why the appellants chose to live "discreetly" and not "openly". 15 Confronted by this judgment in the High Court, the second Tribunal found the only way out to justify the refusal of the protection visas. It found that they were not homosexuals after all. 16 The second Tribunal found that the appellants were "close relatives", who have been "married to women", which is "at odds with their being a homosexual couple who met by chance in 1994 …" 17 I interpolate to observe that the third Tribunal disagreed with the second Tribunal as to the basis of the crucial finding of homosexuality. 18 The third Tribunal said: … the Tribunal finds that the applicants were not married, and the reason that the various applications indicated they were married was that this would facilitate the granting of the visas sought. 19 It is important to have regard to the issues before the High Court in Appellant S395/2002: The [first] Tribunal accepted that the appellants were homosexual, and that homosexual men in Bangladesh are a particular social group for the purposes of the Convention Relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees 1967. However, the Tribunal rejected most of the claims made by the appellants as to the persecution they had suffered in Bangladesh, including claims that they had experienced threats and violence over many years. It found that they had not in the past suffered serious harm by reason of their homosexuality, observing that they had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". 20 Further: The [Tribunal] rejected their claim to have a well-founded fear of persecution in Bangladesh by reason of their homosexuality. The Tribunal rejected most of their individual claims, but accepted that it was not possible to live openly as a homosexual in Bangladesh. It found, however, that the applicants had "clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now". The applicants contended that the Tribunal had erred in law by imposing upon them a requirement that they live discreetly in order to avoid persecution. 21 All the members of the High Court held that the (first) Tribunal: … had not imposed a requirement that the applicants live discreetly if they returned to Bangladesh. It had made a finding of fact that they would live discreetly. That finding did not itself involve error. 22 However, in the view of McHugh and Kirby JJ, and of Gummow and Hayne JJ, in their respective joint judgments, held: Asylum seekers are not required to take reasonable steps to avoid persecutory harm. The Tribunal must determine how an asylum seeker is likely to live on return to his or her country of origin and assess the chance of persecution on that basis. It is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences. 23 Senior Counsel for the Minister, Mr S J Gageler SC had submitted to the High Court: The Tribunal was correct in reasoning that, because the appellants would face physical harm only if they were not discreet, and because there was no reason to expect that they would not be discreet in the future, they were not at real risk of physical harm. ... If on the facts there is a real chance that a person's homosexuality may be discovered despite living discreetly, and if discovery would lead to serious harm, the person is a refugee. 24 The homosexuality of the appellants was at the core of the proceeding in the High Court. 25 As McHugh and Kirby JJ noted under the heading, "The material findings of the Tribunal", at [25]: The Tribunal found that the appellants were homosexual males who had lived together at various places in Bangladesh from 1994 to 1996. … The Tribunal accepted that "homosexual men in Bangladesh constitute a particular social group under the Convention". The Tribunal found: "[H]omosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. However, Bangladeshi men can have homosexual affairs or relationships, provided they are discreet. Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it. It is also clear that the mere fact that two young men held hands or hugged in the street would not cause them to be seen as homosexuals, and that being caught engaging in sexual activity on one occasion would be most unlikely to cause a young single man to be labelled a homosexual." 26 Gummow and Hayne JJ emphasised, at [85] and [86], some of the observations of the Tribunal: 85 Of more concern is the Tribunal's statement that "it is not possible to live openly as a homosexual in Bangladesh". It went on to say that: "To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police." (Emphasis added.) The Tribunal further found that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet". (Emphasis added). 86 Nowhere in the reasons of the Tribunal is any consideration given explicitly to whether there was a real chance that the appellants would be subjected to any of the "more serious forms of harm" to which the Tribunal alluded. Nowhere in the reasons is any consideration given explicitly to whether the appellants would be subjected to ill-treatment by police. Nowhere is there consideration of whether subjection to any of these "more serious forms of harm" would amount to persecution. 27 By order of the High Court, the matter was remitted to the Tribunal for re-determination. 28 What occurred on the remitter by the High Court to the second Tribunal is recorded in the judgment of Federal Magistrate Smith of 13 April 2006, on the occasion of the appeal from the decision of the second Tribunal to the Federal Magistrates Court. 29 Amongst other matters, it was submitted to the second Tribunal by counsel for the appellants that: … it was not open to the Tribunal to reconsider whether the applicants "are in a homosexual relationship" nor whether "homosexuals face discrimination or harm" in Bangladesh. 30 Counsel for the appellants argued: … these facts were "immutable matters that stand and which were not disturbed in the court above". 31 The member constituting the second Tribunal said: I will consider that argument. I will share the job of considering that argument with other minds in the Tribunal. That is to say I will take legal advice from our legal section on that matter. 32 There were complaints about forcing the hearing on in the absence of counsel's availability, and before Smith FM, that the second Tribunal was "biased against the [appellants]", or there was a reasonable apprehension of such bias. Those grounds were particularised. 33 The central finding of the second Tribunal was: The Tribunal finds that the Applicants are close relatives who are, or have been married to women. The Tribunal's finding is based on evidence provided by them and by [SZFSG's] brother. The Tribunal does not rely on the evidence of the anonymous caller to DIMIA in relation to these or, in fact, any adverse factors in the Applicants' respective cases. However, the Tribunal is also of the view that the anonymous caller's evidence does not help their cases. The Tribunal considers that it is important to make this clear because the Applicants have made unsupported claims about the caller having acted on behalf of either a homophobic section of the Bangladeshi community or DIMIA or both. The Tribunal does not accept those suggestions. For the reasons stated, the Applicants' being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together. The fact that they are married knocks out their claims about their aversion to heterosexual marriage. 34 It is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. It is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the High Court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel. 35 On 13 April 2006, Smith FM dismissed the application by the appellants for orders by way of judicial review of the decision of the second Tribunal handed down on 14 January 2005. That decision affirmed the decisions of the delegate of the Minister made on 23 April 1999, but on quite different factual findings. The first Tribunal found that the appellants were homosexual; the second Tribunal found "the Applicants are close relatives who are, or have been married to women", and "for the reasons stated, the Applicants' being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together. The fact that they are married knocks out their claims about their aversion to heterosexual marriage". 36 An appeal from the judgment of Smith FM to the Federal Court (Emmett J) was allowed by consent, and the matter was remitted to the third Tribunal. 37 The findings of the third Tribunal were the subject of an unsuccessful appeal to the Federal Magistrates Court, and are now before this Court. 38 The appellants rely on four grounds before this Court. Grounds 5 and 6 were not pressed. The four grounds are: 1. That Her Honour [Federal Magistrate Orchiston] erred in failing to find that the following findings of the Tribunal were procedurally unfair to the extent of jurisdictional error (a) That the applicants are cousins once removed, such finding (i) being contrary to unchallenged expert DNA evidence that the applicants were "unlikely to be related"; and (ii) being based in part on a finding ("the sub finding") that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal. (iii) being contrary to the evidence of each of the applicants and of the witness; and (iv) being otherwise based wholly on anonymous information (b) That weight be given to anonymous "dob-in" information (c) That the applicants are not homosexual or in a homosexual relationship 2. That her Honour erred in failing to find that the following findings of the Tribunal were "unreasonable" as that term is defined in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, and that such unreasonableness amounts to jurisdictional error:- (a) That the applicants are cousins once removed, such finding (i) being contrary to unchallenged expert DNA evidence that the applicants were "unlikely to be related"; and (ii) being based in part on a finding ("the sub finding") that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal. (iii) being contrary to the evidence of each of the applicants and of the witness; and (iv) being otherwise based wholly on anonymous information (b) That weight be given to anonymous "dob-in" information (c) That the applicants are not homosexual or in a homosexual relationship 3. That her Honour erred in failing to find that the following findings of the Tribunal jointly and severally demonstrate bias on the part of the Tribunal amounting to jurisdictional error:- (a) That the applicants are cousins once removed, such finding (i) being contrary to unchallenged expert DNA evidence that the applicants were "unlikely to be related"; and (ii) being based in part on a finding ("the sub finding") that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal. (iii) being contrary to the evidence of each of the applicants and of the witness; and (iv) being otherwise based wholly on anonymous information (b) That weight be given to anonymous "dob-in" information (c) That the applicants are not homosexual or in a homosexual relationship. 4. That Her Honour erred in failing to find that the decision of the Tribunal taken as a whole is demonstrative of bias on the part of the Tribunal amounting to jurisdictional error; 39 In my judgment, the decision of the third Tribunal was made in the teeth of the evidence. Having regard to the legality/merits dichotomy of judicial review, this may, arguably, not be a sufficient basis for the Court to interfere. 40 However, I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861. 41 The decision of the third Tribunal manifests "an apprehension of predisposition, tendency or propensity towards a given result": NADH v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [16]. 42 That apprehension is, in my judgment, well founded. 43 In NADH, Allsop J, with whom Moore and Tamberlin JJ agreed, said, at [16]: Criticisms were … made of how the tribunal reached a large body of factual findings. It was said that the approach to finding the facts, and the facts as found, demonstrated a lack of impartiality. No particular interest, affection, enmity or prejudice was identified which might have occasioned or contributed to the impugned conduct or approach. Thus formulated, the criticism of lack of impartiality is one which amounts to a complaint of an apprehension of predisposition, tendency or propensity towards a given result: cf Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; 178 ALR 421; [2001] HCA 17 at [183] per Hayne J. 44 I am satisfied that the decision of the third Tribunal has been moulded to support a particular conclusion, namely, that the appellants were not homosexual. I am satisfied that this was done, not as a genuine exercise of administrative fact finding to which Courts, and in particular this Court, should, and must, defer, but in an attempt to insulate the finding from judicial examination, because it was expressed as being based on credibility. 45 While the facts were quite different, Lee, Hill and Marshall JJ in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, said, at [55]: … To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion: (see: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152, [42]. 46 It is a temptation, into which, in my opinion, the third Tribunal fell, to state a finding (however improbable or extraordinary) as based on an assessment of credibility, as a means of attempting to "bullet proof" the administrative decision from judicial review. 47 McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 said, at [67]: … a finding as to whether the prosecutor should be believed in his claim - a finding on credibility … [is] the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. 48 Brennan J, as he then was, said in Waterford v Commonwealth (1987) 163 CLR 54, at 77: There is no error of law simply in making a wrong finding of fact. 49 A finding, which purports to be a finding of fact, is not rendered immune from judicial examination, if it is not made in good faith, but for an ulterior purpose: in this case, in the light of the remittal to the Tribunal by the High Court, to "get around" the factual findings that had earlier been made, in the enquiry as to whether the appellants were entitled to the issue of protection visas. 50 Whether the decision of the third Tribunal be regarded as unreasonable in the Wednesbury corporation sense, or on the basis that the decision was not made in good faith, or on the basis that there was a lack of impartiality in the fact-finding process, the decision of the third Tribunal has to be set aside. 51 Concerning Wednesbury unreasonableness, Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [555], referred to Aronson, Dyer and Groves', in Judicial Review of Administrative Decisions, 4th Ed, view that the courts "regard this ground as representing a safety net, designed to catch the rare and totally absurd decision which has somehow managed to survive the application of all other grounds of review". 52 His Honour quoted comments by Aronson, Dyer and Groves, at [565], that: Confined to extreme cases … [Wednesbury unreasonableness] amounts to the sort of low-level quality control which most management systems should maintain in any event … there would be serious credibility costs to the system if demonstrably absurd decisions were allowed to go unchecked. 53 So too, in my judgment, would there be serious credibility costs to the system if decisions, not made bona fide, but contrived to reach a preordained result, were allowed to go unchecked. 54 It is now necessary to say with some particularity why, in my view, the judgment of the third Tribunal was not made bona fide. 55 There are, in particular, two aspects of the evidence which were relied on by the Tribunal which lead me to conclude the Tribunal was concerned, not to find the facts truly, but to arrive at a predetermined conclusion, namely that the appellants were not homosexuals. 56 The third Tribunal had before it the evidence before the three Tribunals. 57 A very large volume of material had been sought from the appellants by way of letters written pursuant to s 424A of the Act. Much of the information sought has the flavour of interrogation directed at disproving the appellants' primary contention that they were homosexuals. 58 There was a s 424A letter dated 5 November 2004 sent to the second appellant, the response of which was considered by the second Tribunal. 59 Further letters of invitation were sent by fax on 17 October 2007. As the third Tribunal noted: These letters have not been reproduced in this decision record, because of the length of the invitations. 60 In question 8 of the letter, an officer of the Tribunal asked (with necessary changes to ensure anonymity): In [SZFSG's] Application for a Protection visa, lodged on 4 March 1999, there is a reference to [a named person], who is noted as his brother. Further, in the Application for Migration to Australia, by [SZFSG's] sister, she also notes [the same named person] as her brother. Please provide proof that this person, who has exactly the same name as you, is not you. That is, that you [NAOX] are not [SZFSG's] brother. 61 In response to this request, the appellants went to the trouble and expense of securing DNA evidence. The DNA testing report from DNA Laboratories Sydney was carried out on each appellant. In the light of question 8, the report says: Y chromosome analysis was also conducted on the samples from [each appellant] to try and establish if a common male lineage exists. 62 The report states that the result of the testing "excludes common paternal relationship". 63 The report further states: The relationship testing results and mismatches on the Y chromosome do not support evidence of any genetic relationship between [NAOX] and [SZFSG]. 64 The report further stated: We consider this evidence that [NAOX] and [SZFSG] are not likely to be related. 65 There could, in my opinion, be no more comprehensive proof to the contrary of what was asserted in Question 8 of the letter of 17 October 2007. 66 The DNA analysis taken at the initiative of the appellants was done in order to establish that they are not brothers. The Tribunal, however, dissected the DNA analysis and focuses on a statement that there was "inconclusive evidence of a cousins relationship". The Tribunal, quite irrationally and indefensibly in my opinion: … finds that the DNA test was designed to provide (inter alia) an index showing evidence of a cousins relationship, limited to first cousins. 67 Further, having regard to a "dob-in" claim that the appellants are cousins once removed, the Tribunal said: … the Tribunal finds that there is a strong likelihood that the DNA results supports the dob-in information, in the context that the (first) cousins index was 0.63. 68 The treatment by the Tribunal of the information requested by the Tribunal, and the DNA analysis that was supplied in response to that question, which appears at pages 68 to 70 of the Tribunal's reasons, is not only wrong, but, in my judgment, contrived to support a predetermined result. 69 There were further invitations sent by fax on 14 December 2007, as well as further invitations on 16 January 2008. On 16 January 2008 there was a complaint of inadequate transmission of 22 pages of the 52 page fax dated 16 January 2008. There was a request for an extension of time. The Tribunal responded: In all the circumstances the Tribunal has considered the request for an extension to respond to the letters dated 16 January 2008 carefully, but have decided not to grant an extension of time for both matters. 70 The response by both appellants, received on 30 January 2008, made the point: At the outset, we make the point that this tribunal ("the Third Tribunal") should disqualify itself on the grounds that its conduct gives rise to a reasonable apprehension of bias. The Tribunal is acting in a partisan manner to bring about a particular result. In addition to the voluminous material already held by the RRT in respect of the hearings of the First and Second Tribunals, the Third Tribunal already has received answers to the following:- (a) Letter dated 25 June 2007 from the Tribunal of two pages inviting comment on material which it was said might be the reason for affirming the decision under review. (NB. This was responded to); (b) Answers to questions asked of the applicants and their witness at the hearing of 2nd August 2007; (c) Twelve page letter from the Tribunal dated 17 October 2007 inviting comment on further material which it was said might be the reason for affirming the decision under review. (NB. This was responded to); (d) Seven page letter from the Tribunal dated 14 December 2007 inviting comment on further material which it was said might be the reason for affirming the decision under review. (NB. This was responded to); You now invite comment on your letters of 10 January (4 pages plus annexures) and your letter of 16 January (5 pages plus annexures). In the context of an application that has been before two previous Tribunals (the decision of the First Tribunal being overturned by the High Court and the decision of the Second Tribunal being overturned by consent by the Full Court of the Federal Court) the Third Tribunal's conduct to date does not look like that of a fair and impartial tribunal of fact. Rather it has all the hallmarks of a decision maker attempting to find some justification for a decision it has already decided to make. 71 In the reasons of the third Tribunal, the Tribunal said: Before proceeding to the findings and reasons, the Tribunal will turn to the requests for the Tribunal to disqualify itself for reasons of bias which are not discussed elsewhere in the decision record. The Tribunal is very concerned about claims relating to bias. As a result, the Tribunal has carefully considered the issues identified by the applicants' adviser regarding possible apprehended and/or actual bias … 72 A fair reading of the third Tribunal's reasons and comments in this respect are highly argumentative and self-justifying. In particular, the third Tribunal said: … in this case at the hearing before the third Tribunal, the Tribunal became aware of possible inconsistencies between parts of the applicants' evidence, possible internal contradictions in each of the applicant's evidence, and the first applicant's refusal to answer a question. These matters raised possible issues of truthfulness and credibility. The Tribunal also became aware at the hearing before the third Tribunal of possible inconsistencies and unreliability in the witness' evidence. (Emphasis added) 73 I have already referred to the Tribunal's treatment of the DNA evidence. 74 The second discrete body of evidence, which in my judgment demonstrates the Tribunal did not approach its task bona fide, relates to the "first applicant's refusal to answer a question". This evidence in my view, indicates that the Tribunal was not concerned with genuine fact finding, but was seeking to give effect to a preordained result. 75 In a letter dated 11 July 2007 signed and dated by both appellants, the following offer was made to the Tribunal: Should you require it (although such a step would cause us significant embarrassment) we are prepared to have an adult witness view us engaged in an act of homosexual intercourse and then attest before you to that fact. It would be illogical were you to refuse such an offer and then go on to find, as did Member Hardy, that we are not homosexual. 76 The Tribunal in its reasons said: At the hearing held before the Tribunal on 2 August 2007, the first applicant stated that he and the second applicant have sex in the morning. The Tribunal asked if they used a lubricant. The first applicant stated that he did not wish to answer. 77 The Tribunal said later in its reasons: The Tribunal, with respect, has difficulty understanding how viewing an act of homosexual intercourse, where a lubricant may or may not be used, is less offensive to the applicants than answering a question as to whether a lubricant is used. Because of the refusal to answer the Tribunal's question, and the lack of a cogent response, the Tribunal finds that the first applicant is not a truthful or credible witness. (Emphasis added) 78 The evidence concerning the "first respondent's refusal to answer a question" is as follows: [THE TRIBUNAL]: Do you have sex in the morning? THE INTERPRETER: This is a personal question. [THE TRIBUNAL]: You don't want to answer? THE INTERPRETER: No. … [THE TRIBUNAL]: Do you have sex with him though? THE INTERPRETER: Yes. … [THE TRIBUNAL]: Now you may not want to answer this question but when you do have sex do you use a lubricant? [NAOX]: I don't want to. [THE TRIBUNAL]: Don't want to answer … (Emphasis added) 79 It is one thing for the Tribunal to say that the first appellant refused to answer a question, and that this was the basis for finding that the first appellant was not a truthful or credible witness. It is quite another thing when the Tribunal prefaces the question "Now you may not want to answer this question, but when you do have sex, do you use a lubricant" to which the first appellant replied, "I don't want to." And the Tribunal noted "Don't want to answer", and to use the first appellant's refusal to answer that question as the basis for a finding that the first appellant was not a truthful or credible witness. 80 In my judgment, the decision of the third Tribunal was not made in good faith, and was unreasonable in the Wednesbury Corporation sense. The Tribunal was guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship. 81 The appeal must be allowed, and the matter remitted, yet again, to the Tribunal, differently constituted, for consideration. 82 The first respondent must pay the costs of the appellants, to be taxed if not agreed. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.