SBBG v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The first applicant is a citizen of Iran. He and his wife and two children (a son and a daughter) are members of the Mandaean religion (which is sometimes called the Sabian, or Sobbi religion). 2 They arrived in Australia on 5 April 2001 and entered Australia without being in possession of a visa. They were therefore unlawful non-citizens: s 14 of the Migration Act 1958 (the Act). Because they were unlawful non-citizens they were liable to be detained: s 189 of the Act. Once detained they had to be kept in immigration detention until they were removed from Australia under ss 198 or 199 or deported under s 200 or granted a visa: s 196 of the Act. 3 On 25 June 2001 the applicant lodged an application for a protection visa. The criterion for a protection visa is that the applicant must be a non-citizen in Australia to whom the Minister for Immigration and Multicultural and Indigenous Affairs is satisfied Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (Refugees Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Refugees Protocol). To establish that Australia has protection obligations under the Refugees Convention, a person must establish that he or she: '… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' 4 On 13 September 2001 a delegate of the Minister refused to grant the applicant a visa and on 17 September 2001 the applicant sought a review of that decision from the Refugee Review Tribunal (RRT). On 19 December 2001 the RRT gave its decision affirming the decision not to grant protection visas to the applicant and his family. 5 The applicant brought judicial review proceedings in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth)which were heard and determined on 30 October 2002. 6 The primary Judge proceeded on the basis that the RRT decision was a privative clause decision to which s 474 applied 'with the effect of limiting the jurisdiction of the Court in the manner stated by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598'. Such a course was then dictated by a decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 (NAAV). 7 The primary Judge considered the application before him in accordance with the dictates in Hickman and NAAV and concluded that the application should be dismissed. In light of the then binding authority (NAAV), the applicant had pressed a case of a 'lack of bona fides' on the part of the RRT. No lack of bona fides was found by the primary Judge. 8 Subsequent to his decision the High Court gave its decisions in re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (Plaintiff S157). 9 The applicant appealed to the Full Court of this Court which necessarily followed the decisions of the High Court and declared the decision in NAAV to be no longer binding authority. 10 The Full Court said: 'In light of the High Court decisions in S134 and S157, the jurisdiction of this Court in judicial review proceedings is broader than that on which the parties and the Court proceeded at first instance. It is clear from the High Court decisions that the Court's jurisdiction is limited to "jurisdictional errors" (s 157 at [76]) and that, in determining whether or not a particular error is a "jurisdictional error", it is necessary to have regard to the whole of the Act, including s 474 (s 157 at [77] - [78]). However, this is a significantly broader jurisdiction than that assumed by the primary Judge and by the parties. In particular, it is clear that this Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a breach of the rules of natural justice (as understood in the context of the Act). This would include, for example, a failure to afford a fair hearing. It would also include a reasonable apprehension of bias. It is also clear that the Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) where the Tribunal has proceeded on a misunderstanding of the law, at least in relation to defining its core task. This includes, in particular, a misunderstanding of the legal meaning of "refugee".' 11 The Full Court considered whether it should hear for itself whether the review before the primary Judge would have succeeded if the primary Judge had had the benefit of the High Court decisions or whether the matter should be remitted to a single Judge of this Court for that review. In the end, it exercised its discretion to remit the matter to a single Judge of this Court for hearing and determination in accordance with law. 12 The first applicant was born on 28 April 1958; his wife on 29 April 1957; their son on 29 May 1983; and their daughter on 21 January 1985. 13 The applicants lived in Ahwaz in Iran. The first applicant was a self employed silversmith and goldsmith. 14 They claim that they left Iran because of oppression to which they had been subjected because of their religion. A number of instances were provided in support of that claim. 15 Ahwaz is mainly occupied by Sabian-Mandaean people. Nevertheless it was the applicant's case that Sabian-Mandaean people were subject to significant persecution because of their religion. They were considered by Muslims to be dirty and because of that subject to a number of restrictions. 16 There are about 20,000 to 25,000 Sabian-Mandaean people who mainly live in southern Iraq and south-western Iran. John the Baptist is central to their faith. Baptism is a regular right undergone by the faithful and baptism is considered a ritual cleansing. 17 Most Sabian-Mandaeans are involved in the goldsmithing and jewellery trade. Country information suggest they usually dress in the same way as Muslim Iranians although they have special garments that are worn in religious ceremonies. The men wear their beards differently to Muslim males. 18 The Tribunal found that those who adhere to this religion face some discrimination in Iran. It also found that there was no systematic basis for harassment or persecution of Sabians. The Tribunal also found that one of the Mandean places of worship has been closed and as a result the community has been 'inconvenienced'. However, the Tribunal also found that the applicants were not prevented from practising the essential aspects of their religion in Iran prior to their departure or that they faced harm amounting to persecution for reasons of their religion. 19 The applicants were accompanied and assisted by a psychologist before the RRT. It is unclear whether or not the applicants were represented by a migration agent as well, but counsel for the applicants conceded that there did appear to be 'advisers' present. The RRT took oral evidence on two occasions twelve days apart, 17 and 29 October 2001. The RRT provided the applicants with notice of particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision not to grant a protection visa: s 424A of the Act, and invited the applicants to comment on it. The applicants responded to the notice by a letter dated 19 November 2001 and by a further submission from their agents, the Refugee Advice and Casework Service (Australia) Inc. 20 It is in that setting that the applicants' first complaint on this review must be understood. 21 The applicants complain that a reasonable apprehension of bias arose by reason of the way in which the RRT conducted its proceedings. 22 The RRT must conduct its proceedings in accordance with procedural fairness. Clearly enough if the RRT were biased then to continue with the proceedings would be procedurally unfair to the party against whom the tribunal was biased. It would be no less unfair if a hypothetical fair minded lay person, who was properly informed as to the nature of the proceedings and the matters in issue and the conduct which is said to give rise to the apprehension of bias, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: re Refugee Review Tribunal (2001) 179 ALR 425. 23 It would be a breach of procedural fairness for the RRT to proceed to consider a review of a decision of a delegate of the Minister if the member of the RRT was actually biased or a hypothetical lay observer might apprehend that the member might be biased. 24 In either case if the RRT does proceed to determine the review, that determination may be reviewed and set aside by this Court notwithstanding the provisions of s 474 of the Act: Plaintiff S157. 25 The applicants claim that an apprehension of bias would have arisen in the mind of a hypothetical fair minded lay person because the RRT: '(a) failed to adjourn the hearing to enable the Appellant to receive the tapes of the first three interviews which had been requested by the Appellant [RRT transcript page 3] (b) would not allow family members to be present when other members gave evidence [RRT transcript page 4] (c) continually interrupted the answers of the Appellant and his family and made inappropriate comments [RRT transcript 10;16;] (d) failed to make proper the enquiries that clearly were required by an inquisitorial body given the responses by the witnesses [RRT transcript page 12;17;] (e) failed to allow the witnesses adequate time to present their case because the equipment was required by someone else (f) failed to allow the Appellant wife to make further submissions at the first day of the Tribunal hearing' 26 The nature of the complaints required me to read the transcript before the RRT. 27 In my opinion the complaints in pars (a) to (e) are hypercritical. However, I will deal with them seriatim. 28 The RRT member advised each of the applicants that she would take evidence from them individually 'because each of [them had] made claims under the Refugees Convention'. 29 She explained the procedure to the applicants and having done so asked them whether they had any questions about anything she had said to that point of time. 30 The first applicant and his adviser told the member that they had not been able to obtain tapes of three interviews from the Department of Immigration and Multicultural and Indigenous Affairs (the department). The member told them that the RRT had the tapes but had to send them back to the department and have the department send them to the applicants 'so it is something you will have to raise with your adviser to get them to contact the Department of Immigration'. The first applicant said they had wanted to listen to the tapes before the hearing but that was no longer possible. The member said that there would probably be time at the end of that day's hearing for the matter to be addressed. 31 The applicants did not seek an adjournment of the hearing. Their single complaint was that the department had not provided them with the tapes so as to allow them to hear what they had previously said before they gave evidence before the RRT. In my opinion the member dealt with the matter appropriately. If the applicants had sought an adjournment then perhaps other steps might needed to have been taken but that was not the case. The first complaint is without substance. 32 Immediately after discussion about the tape the member asked the applicants apart from the first applicant to leave the room. The following exchange took place: 'SBBG: There may be some points that I don't remember that I'll have forgotten, and I just wanted the children to be here so they can remind me. Ms Morris: Well you can speak to them after I have taken evidence from you, but at this stage I want to take evidence from you by yourself, thank you. So if you wouldn't mind leaving and you will be called back shortly.' 33 The applicant's adviser (a psychologist) then asked whether she could remain. The member allowed her to remain. 34 In my opinion the member was entitled to ask applicants to give evidence out of the hearing of each other. Indeed such a course is in the applicants' interests. If they are not present when each other gives evidence there can be no suggestion that any of them relied upon what any of the others said for the purpose of giving their own evidence. 35 The course adopted is a course usually adopted by a trial judge and in my opinion was entirely appropriate in this hearing before the RRT. The complaint in par (b) has not been made out. 36 The third complaint includes a claim that the member 'continually interrupted the answers of the appellant'. The transcript of the first day's hearing occupies 28 pages. The transcript of the second day's hearing occupies 24 pages, a total of 52 pages. Two instances on two pages are relied upon for the contention that the member 'continually interrupted the answers of the appellant' and his family and 'made inappropriate comments'. The two instances are to be found in the transcript of the first day. There is no need to go to the transcript in detail because in my opinion the claim in par (c) has not been made out. 37 However, there is a comment which the member made at p 10 which was undesirable. After dealing with the topic of the food available to the applicants in Iran the member said that none of the applicants looked like they were starving. The applicants had been in Australia for a period of time when their application came before the Court and any observation about their physical condition at that stage could not have been relevant to their circumstances whilst in Iran. The comment was somewhat personal. It would have been better if it had not been made. 38 In my opinion however the matters asserted in par (c) have not been made out. 39 The first matter in par (d) arose out of questions asked of the first applicant concerning his religion. The first applicant had asserted that an incident occurred whilst he was wearing a crucifix when a Pasdar saw it and pulled it from him. 40 The member of the RRT raised that matter with the applicant and referred to some basic tenets of the applicant's faith. In doing so the RRT suggested to the first applicant in the first applicant's religion that 'Jesus is considered to be a false prophet and almost depicted as evil'. 41 Having said that the member of the RRT said: 'Now … in light of the fact that you consider yourself to be a fairly devout Mandaean, from your statement, I find it almost incredible that you would wear a crucifix or a cross which is a sign for Jesus. I find it very implausible that you would do that, and I think you have made up this claim.' 42 The applicant replied that the cross had been given to him as a gift by a Christian and that he was wearing it. He said that this was just given as an example. The Tribunal member pressed him by pointing to the fact that in his application he was accused of evangelising. 43 The following exchange occurred: 'SBBG: The pastars (sic), when they saw me wearing the cross, they pulled it off me and they said that because I was wearing the cross they said that you are providing, that you are wearing this to promote Christianity and they pulled it, I had a red mark on my neck and they just threw it on the, er, threw it on the ground and they were stepping on it and they were swearing and everything and obviously you can't have a fight can't have an argument with the pastars, so I just picked up the cross and put it in my pocket and the broken chain. Ms Morris: I find it quite implausible that you'd be accused of evangelising or promoting Christianity when Mandaens are not considered to be Christians first of all, and secondly Mandeans do not allow converts to their religion. SBBG: That cross was given to me by my friend and I was wearing it just er just because it was a memory from him, but also I was in pain and agony from the Muslims and you can find out the truth, you can find out about the, the truth about the churches in Apros and find out what's happened to all the priests in Apros. Its not only I used to go and watch the churches .. its .. to go into the church itself. You can't enter the church, you aren't allowed to go in it. I knew a person called Savo, who was promoting in (inaudible) he was a Catholic and he couldn't live in his house and it was put in writing you were not allowed to er, allow you to evangelise (inaudible) because otherwise you will be imprisoned and there will be punishments, and I knew that person. Ms Morris: I know but that doesn't, that's not relevant to your claims, because Mandeans don't proselytise. Mandeans, the Mandean church, is a closed church. You don't accept converts, so this is irrelevant to your claims that someone else is evangelising. SBBG: He doesn't. Ms Morris: Mandeans don't proselytise. According to the independent evidence from your own organisations you say that Mandeans do not allow converts to their religion. SBBG: I think you probably said it, said it, um, said the wrong thing. I'll just say it again so that you can interpret it properly. It was, I said that it was a Sabean who was converted to Christianity and he was representative in Akvos of the Protestant representative and he had a house which in his house, in this house he was um, he was promoting Christianity, and I said that Muslims couldn't go to that place because ah, then the person would be imprisoned … Ms Morris: Sorry, - he is Sabean! Can you check that? So you're saying that there was a Sabean that converted to Protestantism? SBBG: Yes, Christian. Protestant Christian. Ms Morris: Okay. Well, I, I still can't see how that is relevant to your case, because that person who converted to Protestantism would have been expelled from your church. He would have been shunned by your church. SBBG: Yes, that's correct, but I feel, I still think … Interpreter: He, he don't know what it means. (aside) Just say it again. Ms Morris: Okay. SBBG: I said that there was this man called Mr Sagubu which he was ah, converted to Christianity, and he had this house and, he was promoting Christianity there, and he was told that if there is any Muslims, if anybody, um, attends, his meetings, his speeches, then they would close down that house, they wouldn't allow him, and he would be imprisoned, and he was a Christian man, who, because he was a Sabean, and then he converted to Christianity and he was promoting Christianity, that he was told that he is not allowed to have, and no Muslims could go and you couldn't promote that to Muslims, and I spoke to this person, and and he said yes, that this had happened.' 44 In my opinion there is nothing in that exchange which required the RRT to make any further enquiries. There is nothing in the applicant's response which required further investigation. 45 In the end result the issue which the applicant had relied upon was irrelevant to his claim of persecution. He was wearing a cross because it had been given to him by a friend who had apparently converted to Christianity. The applicant is not a Christian, he is a Mandaean. In those circumstances, if the cross was removed from him as he claimed it was, it was irrelevant to his claim of a well founded fear of persecution for reasons of his religion. 46 The second matter relied upon in par (d) related to country information put to the first applicant in his evidence. His attention was drawn to a publication entitled Information on the Mandeans in Iran in regards to Human Rights which the member advised the applicant was written by 'people supporting human rights for Sabaeans in Iran'. She said of the authors: '… they say, you are able to continue with your weddings, your baptisms, your funerals, that you are able to do this because you're not considered to be threatening, local Muslims are used to seeing you. Do you want to comment on this?' 47 The applicant's reply was in the form of a question asking whether the authors had gone to Iran 'and visited the situation'. That reply did not oblige the RRT to make any enquiries of the kind raised by the reply. 48 The weight which was to be given to any country information was a matter for the member. The member was under no obligation, because of a reply given by the applicant, to enquire into the circumstances in which any particular author had gathered the information which is the subject of that author's report. 49 In due course the member referred to that report and the applicant's answer and I think treated the answer, correctly in my opinion, as a denial by the applicant of the accuracy of the report. 50 However, the answer did not require the RRT to make any enquiries of the authors of the report. I do not accept the matters contained in par (d). 51 The matter in par (e) is without foundation. The matter, as I have already said, proceeded over two days. After the first applicant and his wife had given evidence, the member advised the applicant wife that she would take their children's evidence on another day. After a further interchange the member said the reason she was stopping was because the video had to be used by someone else. Some further matters were discussed and the matter was adjourned. 52 The matter resumed again 12 days later when all of the applicants were again present. The member adopted the same procedure as on the first day and asked the first applicant and his wife to leave whilst she took evidence from their son. Just prior to leaving the applicant's wife said there were other matters she wished to raise with the RRT. The member said she would hear her again at the conclusion of the hearing. She in fact heard the applicant wife between the applicant son's and the applicant daughter's evidence. At that time the applicant wife gave evidence of an incident which she had not previously mentioned and of which her family was unaware. 53 Before giving her evidence the applicant wife asked for everyone to leave the room. She then gave evidence of a sexual assault by an official in the education department in Iran. The substance of the evidence is set out below in the reasons of the RRT to which I will shortly refer. The RRT did not curtail her evidence nor prevent her putting anything she wished to put to the RRT. 54 There is no suggestion in the transcript of evidence that any of the witnesses were not allowed adequate time to present their case for the reason given in par (e) or for any other reason. 55 For the reasons which I have given, no hypothetical fair minded lay person could apprehend that the RRT might not have brought an impartial mind to the resolution of the question to be decided for any of the reasons referred to in pars (a) to (e). 56 During argument the applicant's counsel contended that the most significant circumstance which would give rise to an apprehension of bias was that contained in par (f). 57 Indeed it was submitted that not only was par (f) a circumstance which coupled with pars (a) to (e) allowed for the drawing of an inference that a hypothetical lay person might form an apprehension of bias but, standing alone, was an example of procedural unfairness which was sufficient to vitiate the decision of the RRT. 58 The RRT considered the applicant wife's evidence of the claim of sexual assault by an official in the Iranian Ministry of Education. 59 The RRT said in its reasons: 'The claims of sexual assault by an official in the Ministry of Education The applicant wife made a written statement to the Department of Immigration, was interviewed by an officer of the department, and attended a hearing with the Tribunal on 17 October 2001. At no time did she make any claim whatsoever of being sexually molested or assaulted by an official of the Ministry of Education. It was only at a resumption of the hearing on 29 October 2001, did the applicant wife advance this claim. In a letter dated 13 November 2001, the Tribunal wrote to the applicant wife asking her the following question: "At the resumption of the applicants' hearing [and after her son had given evidence] the applicant wife gave evidence that: She was molested by a government official because she is Sabian, and that her breasts [and bottom] were frequently grabbed by Moslem men on motorcycles. The applicant wife made a statement to the department of Immigration in which she made no mention of claims she subsequently raised at the Tribunal hearing. Notwithstanding her stating at the end of her statement that "these are not all of the details of my story and I can provide more details if required" the applicant wife did not make these claims either in writing or orally to the Department of Immigration, nor did she make these claims in writing to the Tribunal. Can the applicant wife explain her failure to make these claims prior to her second hearing? The applicant wife's explanation was to the effect that: · She did not feel safe in talking about sexual assaults and harassment she suffered in Iran, even to a woman adviser. · The stigma and shame associated with revealing such events are significant for any woman moreover a Sobi Mandaean woman from Iran. She was unable to discuss these sensitive incidents prior to the Tribunal because there were men present at each stage of her interview process. · She has been stressed and depressed. The Tribunal does not find the applicant wife's explanation to be reasonable. The Tribunal notes that at no time throughout the refugee determination process did the applicant wife make any efforts to use the services of a female interpreter in order to convey her claims to her adviser [nor, for that matter did she indicate any preference for a female case officer]. In her application form the applicant wife did not ask for a female interpreter, nor did she do so in her response to her invitation to attend a hearing [despite a specific reference to "special needs" and applicant may have such as a female interpreter]. Nor did the applicant wife make any reference to this incident at her first hearing at which she was questioned at length [with a female Member and a female interpreter]. It was only at the last moment - at the very the end of the refugee determination process - that the applicant wife made this claim. The Tribunal notes the comment of Tamberlain J in Gholami v Minister for Immigration & Multicultural Affairs [2001] FCA 1091 (7 August 2001) in regard to initial interviews, but which has relevance to these circumstances: "There appears to have been ample opportunity in the applicant's initial interview for him to state his true reasons for choosing Australia as a destination. Another factor which comes into play is that the obtaining of refugee status was no doubt considered by the applicant as a matter of major importance. In those circumstances, one might have expected that the claim would be squarely and fairly addressed from the outset." The Tribunal is no doubt that this claim is a fabrication, the purpose of which is to enhance her claim to be a refugee. Bearing in mind the comments above made by Tamberlain J in Gholami's case, the Tribunal finds it implausible that the applicant wife would fail to mention claims of such gravity - even indirectly - at the outset, either to the Department or [in writing] to the Tribunal. The Tribunal cannot be satisfied that the applicant wife has been truthful in this claim, and finds her to be - in this regard - an unreliable witness. The Tribunal cannot give weight to this claim.' 60 The applicant's counsel contended that the RRT's reasons overlooked a statement made by the applicant wife on the hearing before the RRT on the first day. 61 The applicant wife gave her evidence on the first day. Near the end of the hearing on that day and after the member said that she was going to adjourn the hearing, the applicant wife said 'I have a lot to say'. 62 The member said that the purpose of the hearing was for her to ask the applicants about information provided to the Tribunal by the applicants. She said that she had asked all the questions she needed to ask but that if the applicant wife wished to make further written submissions she was welcome to do so. She said: 'I, I have asked all the questions I need to ask. If you wish to make further written statements to the Tribunal, you are most welcome to. I mean, the purpose of this hearing is to elicit further information on issues the Tribunal considers to be relevant to making a decision according to the Refugees Convention, which I have done, in asking you the questions I have asked you. If there are things, other things you wish to say, then please put them in writing, and I will give them careful consideration.' 63 The applicant wife asked that if she came back whether she would be interviewed again. 64 The RRT responded: 'No, I am going to take evidence from your children on the next, at the next hearing. What I suggest you do is that you speak to your adviser at the conclusion of this hearing, and if there is nothing that you haven't already written in your statement, or said to me today, which you consider to be extremely relevant to your claims, directly affecting you personally, then put it in writing, and I will give it careful consideration.' 65 The applicant wife responded: 'Are you happy with what I have said? Are you happy with me. If there is anything that is not clear about the things I said, please let me know if there is anything that is unclear.' 66 The circumstances in which the applicant wife came to give the evidence are relied upon as a particular of the claim of apprehended bias. The finding in relation to that evidence is relied upon to establish procedural unfairness. 67 In my opinion the circumstances in which this evidence came to be given does not support the applicants' and in particular the applicant wife's contention that a lay observer might reasonably apprehend that the RRT was biased. 68 The applicants came to the Tribunal for the purpose of supporting the allegations which they had made in their claim that they had a well founded fear of persecution. Not surprisingly in those circumstances the RRT did not enquire into matters outside the allegations when examining the first applicant and the applicant wife. 69 When the applicant wife was examined by a member of the RRT the member could have had no inkling that the applicant wife claimed that she was molested by an official of the Ministry of Education. 70 However when the applicant wife on the second occasion advised the RRT that there was something else she wished to say, the RRT responded by allowing her to give further evidence. 71 In my opinion that was a proper and an appropriate response to the applicant wife's application. 72 There was nothing in the way in which the RRT conducted itself prior to the applicant wife giving her evidence of the sexual assault which could have raised in the mind of a lay observer an apprehension that the RRT was biased. 73 For those reasons in my opinion the applicant's contention that the RRT was biased or that there was a reasonable apprehension of bias must be dismissed. 74 That does not dispose of the second aspect of the applicant wife's contentions. She says that the RRT failed to accord her procedural fairness in the manner in which the RRT responded to her claim on the first day 'that she had a lot to say'. 75 The applicant wife claims that the RRT wrongly criticised her evidence and made a finding adverse to her. It was contended that the finding did not have regard to the applicant wife's attempts to raise other matters with the Tribunal prior to the second hearing. 76 However, the finding made by the RRT is not incorrect. At no time prior to 17 October 2001 did the applicant wife raise the matter of a claim of sexual assault by an official in the Ministry of Education. She did not raise it during her evidence before the RRT on the first occasion, even though on that occasion her attention was drawn to her statement which was to the effect that Mandaean women are vulnerable to rape and abuse by the police. Nor did she mention this matter later that day when she was questioned about members of the general community who tortured and raped Mandaean women and girls and impregnated them. One might have thought those topics might have prompted her to recount these matters. 77 She first mentioned this matter of sexual assault during the second hearing and in circumstances where she admitted that no one else knew of the complaint including her husband and her children. 78 The Tribunal gave the applicant wife every chance to explain the delay in making the complaint. It wrote to the applicant inviting her to give an explanation for the delay in raising this matter. 79 In doing so it gave the applicant wife an appropriate opportunity to explain the delay. It had regard to the explanation given by the applicant wife but rejected it as implausible. 80 The Tribunal gave the applicant wife every opportunity to explain her evidence and thereby accorded her procedural fairness. The finding made by the Tribunal was open to it and the Tribunal did not proceed unfairly. 81 The Tribunal discussed each of the applicant's cases separately. It dealt with the first applicant, the applicant wife and then each of the children separately. It made separate findings in relation to the credibility of each of the applicants and discussed each of the applicants' evidence upon which they relied to prove their claim of a well founded fear of persecution. 82 The applicants complained on this application that in respect of each of the applicants the Tribunal made the same findings which in each case was expressed in the same language. The complaint was, I think, that by making the same findings expressed in the same language the Tribunal did not apply its mind to the separate cases of the applicants. 83 There are a number of common findings and I set out an example of them: 'Other evidence state of the Mandaeans that although some of their practices were influenced by Christianity, Judaism, and Islam, they reject all three. The Mandaeans respect St John the Baptist because of his baptising, since their principal concern is ritual cleanliness and their chief rite is frequent baptism. The custom, which antedated the baptisms of St John, stems from the belief that living water is the principle of life. The sect is diminishing because younger members tend to apostatize. The US Department of State notes that members of all religious minorities suffer varying degrees of officially sanctioned discrimination, while DFAT reports that they are an accepted religious minority in Iran, filling under the mantle of the Christian religion, one of the religions recognised in the Iranian constitution. Sobians appear to be allowed to perform their ceremonies (e.g. baptism and marriages which are partly performed in a river) largely unheeded, as long as they observe Moslem sensitivities. However, Sobian dress and religious ceremonies make them conspicuous amongst the largely Moslem population in Iran, and they may attract unwanted attention as a result of this. As non-Moslems access to civil service employment and higher education may be limited. Representatives of the community have made representations to the Embassy on at least one occasion alleging discrimination (disrespect for Sabian cemeteries) by the Iranian authorities. A member of the Sabian clergy has reported that the Iranian government has refused Sobians permission to publish their own newspaper and that a chapel they built for performing their ceremonies privately was closed down. Independent evidence from DFAT notes that they are not aware of any incident other than the unverified report referred to above [regarding disrespect for cemeteries] of specific or systematic harassment of Sobians in Iran. To the best of their knowledge there is no systematic basis for harassment or persecution of Sobians. The Tribunal finds that as a religious minority in Iran, the Sabian/Mandaeans community faces some discrimination, and that as individuals [such as the applicant son], Sabian/Mandaeans may thus face some discrimination. The Tribunal is supported in this finding by the independent evidence [see above].' 84 There are other findings of the same kind. 85 There is nothing remarkable about the common findings. The applicants are members of one family from the same household in the same district in Iran. They all practise the same religion and they all live in the same society. 86 It would be remarkable in fact if the findings of the kind to which I have referred were different. The way in which the Tribunal has expressed itself is a matter of style. 87 It would have been appropriate for the Tribunal to make the findings of the kind mentioned above in relation to all of the applicants before discussing each of the applicant's separate complaints. That could not have been a matter of complaint. Instead the Tribunal made the same findings in relation to each of the applicant's separate complaints. As I say it is only a matter of style. The Tribunal inevitably had to make the same findings in relation to the matters to which I have referred, otherwise it would have shown itself to be inconsistent. I am not persuaded that the way in which the RRT proceeded indicates any bias on the part of the RRT or amounts to procedural unfairness on its part. 88 I reject the applicants' case insofar as it is based upon bias or procedural unfairness. 89 Next the applicants argued that the Tribunal wrongly construed s 91R of the Act or alternatively misapplied that section to the facts of this case. 90 In particular it was argued that the Tribunal failed to find that the applicant's son was the victim of serious harm. 91 Section 91R provides: 'Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.' 92 Section 91R was included as part of the Migration Legislation Amendment Act (No 6) 2001 (the amending Act) which commenced on 1 October 2001. 93 Part 2 of Schedule 1 of the amending Act deals with the application of the amendment. It provides that Subdiv AL of Div 3 of Pt 2 of the Act applies in relation to: '(a) … (b) … (c) An application for a protection visa made before the commencement of this item, where: (i) a decision to refuse to grant the visa was made before that commencement; and (ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal whether before, at or after that commencement; and (iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.' 94 All three criteria were satisfied in this case and s 91R was a relevant consideration for the Tribunal in assessing the application. 95 The Tribunal correctly identified ss 91R and 91S of the Act as being relevant in the assessment of the applicants' claim for refugee status under Art 1A(2) of the Convention. The Tribunal correctly construed s 91R to require that the Convention reason for the feared persecution to be the essential and significant reason for that persecution. The Tribunal also correctly construed s 91R to require any persecution to involve serious harm to the applicant and the conduct to be systematic and discriminatory. 96 In my opinion the Tribunal's construction of s 91R was correct. 97 An applicant does not have to establish that the applicant has been the victim of persecution: Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1. The test is whether the applicant has a well founded fear of persecution. However it is often the case that the applicant can establish his subjective fear by establishing previous persecution. If the Tribunal is satisfied that the applicant has been the victim of persecution it could more easily objectively determine that the fear is well founded. It therefore follows that if the applicant can establish previous incidents of persecution the applicant can more easily establish both the subjective and objective tests of fear. 98 The applicant son gave evidence that in 1997, whilst at school and drinking from a tap, a Muslim boy came up behind him and abused him saying that he had made the tap unclean. The applicant's son was then attacked and during the attack the applicants son's ear was cut with a knife. 99 The school principal refused to take him to hospital but instead gave the applicant son a piece of cotton to apply to the wound and sent him home for his father to take him to hospital. 100 The applicants assert that that incident is evidence of the applicant's son having suffered serious harm within the meaning of s 91R(1)(b). 101 I have already referred to one of the common findings of the Tribunal relating to discrimination. In the case of the applicant's son the Tribunal further found: 'The Tribunal accepts that the applicant's son may have been discriminated against and subject to some bullying at school because he is Sabian/Mandaean, and he may have been verbally and physically abused for drinking from the same fountain as the Moslem students. The Tribunal acknowledges that these occurrences are unpleasant but do not consider that such treatment amounts to "serious punishment or penalty" or "significant detriment or disadvantage" (see McHugh J in Chan's case) and therefore does not amount to persecution for the purposes of the Convention.' 102 The RRT made reference to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379 (Chan) and wrongly ascribed to McHugh J (upon which nothing turns) something said by Mason CJ. At 388 Mason CJ said: 'Where the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.' 103 It would have been better if the RRT had referred to the test in s 91R(1)(b) which now must be the test to be applied. The question now is whether the feared persecution involves serious harm, instances of which are referred to in s 91R(2) and whether the persecution involves systematic and discriminatory conduct. However neither party argued that the test postulated by Mason CJ in Chan was any different to the test in s 91R. Specifically the applicants did not argue that the reference to Chan indicated that the RRT had asked itself the wrong question in considering the applicants' application for review. 104 The applicants argued that the RRT erred in its application of s 91R to the facts. They argued that the RRT should have made a positive finding that the cut to the applicant son's ear amounted to a serious harm and that therefore the applicant son had experienced persecution involving serious harm; a finding which would have added weight to the claim of a well founded fear of persecution involving serious harm. 105 I do not agree with that submission which I think both overlooks the test for persecution in Art 1A of the Convention itself and the further provisions of s 91R(1). 106 To come within the terms of the Convention, the applicant son had to establish that he had a fear of being persecuted for reason of his religion and that he is unable or because of his fear unwilling to avail himself of the protection of the Iranian authorities. He must also establish objectively that the fear is well founded. 107 Section 91R requires that the applicant establish that the reason for feared persecution is essentially or significantly because of his religion; that the persecution involves or would involve serious harm; and that the persecution involves systematic and discriminatory conduct. Instances of serious harm are provided for in s 91R(2). 108 In this case the Tribunal asked itself the appropriate question but found contrary to the applicant's submission that the incident at school did not amount to serious harm. That finding was open to the Tribunal. Section 91R(2) provides as one instance of serious harm significant physical ill treatment. The Tribunal was entitled to conclude that the incident at school did not involve serious harm to the applicant son because, although his ear was cut, the injury did not amount to significant physical ill treatment. 109 In my opinion the applicant son has not demonstrated error on the part of the Tribunal either in its construction of the section or alternatively its application to the facts in this case. 110 The applicants also argued that the RRT failed to have regard to the psychological harm suffered by the applicants as a result of discrimination, and that failure amounted to jurisdictional error, because the psychological harm was serious harm within the meaning of s 91R of the Migration Act. 111 A psychologist's report dated 14 October 2001 was presented to the RRT by the applicants. 112 Unfortunately the report is rather non-specific in its terms. Paragraph 1 of the report refers to the applicants having referred themselves for counselling 'due to their severe stress and anxiety following the rejection by DIMA of their application for refugee status'. 113 On the face of it the psychological damage the applicants allege they have suffered seems to be related to the rejection by the Minister of their application for refugee status. 114 That reading is supported by reference to the third paragraph of the report which seems to suggest that the psychological counselling has been made necessary by the Minister's rejection: 'The appeal made by the daughter, SBPG, provides an important study in support of this contention. [She] is a child of sixteen years and has found it essential to seek intensive psychological counselling since the DIMA rejection. She exhibits features of post traumatic stress, being hyper-vigilant, experiencing sleeplessness, nightmares, loss of appetite, withdrawal from people and activities, anger and irrational behaviour.' 115 However the next paragraph of the psychologist's report suggests that the applicant daughter has been the victim of discrimination and 'severe consistent pressure to revoke her religious beliefs'. The psychologist talks of her growing up to be considered a non-person 'the most damaging psychological environment possible for a developing human, in a setting where her peers were provided with total emotional support and granted the freedom to abuse this child and others of her kind'. 116 I think in that paragraph the psychologist is referring to the applicant daughter's experiences in Iran. However, whilst the psychologist identifies the stressors which impacted upon the applicant daughter, she does not offer any opinion as to whether these stressors caused psychological harm. 117 In the next paragraph the psychologist again refers to the applicant daughter's experience in the detention centre and that the 'child is now at the end of her emotional strength'. 118 The psychologist's report contains no support for any claim by any member of the family (except perhaps the applicant daughter) that they have suffered psychological stress or damage as a result of their experiences in Iran. 119 At its highest the report might support the applicant daughter's claim that she developed in 'the most damaging psychological environment possible'. However the report does not support a finding that the applicant daughter suffered psychological harm or damage as a result thereof. The report rather suggests her present damage is a result of her further experiences since being in Australia and in particular since being in the detention centre. 120 The claim that the RRT failed to exercise its jurisdiction by failing to have regard to the evidence of psychological damage cannot be sustained. There was no evidence of psychological damage in relation to the first applicant, the applicant wife and the applicant son. Nor in my opinion on a proper reading of the psychologist report was there evidence of psychological damage to the applicant daughter whilst the applicant daughter was in Iran. 121 It follows therefore that the RRT did not fail to exercise its jurisdiction in the manner adverted to in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244. In the absence of any evidence the RRT was not obliged to consider a claim of psychological harm. 122 Next it was argued that the treatment generally suffered by Sabian/Mandeans, and therefore the applicants; being the limited right to protection by the law; the restrictions on religion, education and employment; the restrictions on having a free press; being spat at in the street; being unable to touch food; all of which was accepted by the RRT was such as to amount to persecution. 123 The RRT did find that Sabian/Mandeans face some discrimination. It found that the applicants and particularly the applicant wife may have been verbally abused in the street because of their religion. It also found that she may have been unable to touch foodstuffs when shopping. It found that the applicant son has been discriminated against because of his religion and has been subject to bullying. It found that the first applicant may have been verbally abused by the Muslim majority because of his religion. It further found that he may have been unable to touch foodstuffs. He may have been spat at in the street. 124 The findings upon which the contention is based were made. However, those findings had to be assessed having regard to the provision of s 91R. The findings support a conclusion that the conduct of which the applicants complain was essentially and significantly due to their religion. The findings support a conclusion that the conduct was systematic and discriminatory. However, the Tribunal was not satisfied that the treatment to which the applicants were subjected involved serious harm to the applicants. 125 The applicants relied upon dicta of McHugh J in Chan at 429 - 431 and Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at [258] - [259]. In those cases McHugh J identified a number of facts and circumstances which would amount to persecution. In the second case McHugh J said at 258: 'Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.' 126 He also said at 259: 'However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.' 127 But the applicants did not fail because they did not establish persecution for a Convention reason. Clearly enough the RRT's findings are that they have suffered discrimination and victimisation on account of their religious beliefs. However, the RRT did not find that that which they have suffered amounted to serious harm. It follows that McHugh J's remark dicta does not assist in considering this application. 128 Lastly, the applicants complain that the RRT did not address the question as to whether the applicant wife and applicant daughter were members of a particular social group within the meaning of Art 1A(2) of the Refugees Convention, namely Sabian/Mandaean women in Iran. They claimed the RRT considered their claim merely as women in Iran. It was argued therefore that the Tribunal failed to consider the applicant wife's and the applicant daughter's claim. 129 In its reasons the RRT said of the applicant wife: 'The applicant wife's claims and evidence were to the effect that she fears harm in Iran because she is a woman.' 130 In relation to the applicant daughter, the Tribunal said: "The essence of the applicant daughter's claim to be a refugee is two fold: one, that she fears Convention harm upon return to Iran because of her religion - as a Sabean/Mandean; two, that she fears harm in Iran because she's a woman.' 131 The applicants contended that the applicant wife's and the applicant daughter's case was not that they feared harm because they were women but because they were Sabian/Mandaean women. 132 In my opinion, on a reading of the RRT's reasons, there can be no doubt that the RRT addressed the female applicants' cases upon the basis that their complaint was that they suffered persecution by reason of their religion and their sex both independently and in combination. 133 The RRT did not address their cases as if they were women in Iran of no religious persuasion or of some other religious persuasion apart from Sabian/Mandaean. It is clear that their claims were addressed by having regard to their religious convictions and their sex. 134 The applicants failed in their application for review because they failed to satisfy the RRT that the conduct to which they were subjected because of their religious convictions either had or would cause serious harm. It is the failure to establish serious harm that led to the RRT affirming the delegate's decision. 135 In my opinion that finding was open to the RRT on the evidence before it. The RRT did not in my opinion fail to address any matter relevant to that issue. Nor did it take into account any matter irrelevant to that issue. 136 In the end result it simply decided that issue on the evidence before it. 137 The application must be dismissed. I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.