SGJB v Minister for Immigration & Multicultural & Indigenous Affairs

94 Here, the question is whether each of those sections constitutes a code which thereby excluded any obligation of the RRT to notify the applicant that it proposed to reject Mr Chohaili's evidence after first having given the applicant the opposite impression. In my opinion, these sections do not, in clear terms, deal with the residual common law obligations of procedural fairness which must be assumed to apply; see the discussion of s 424A by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489.

95 I do not consider that the RRT's impressions about the credibility of a witness's evidence is "information" which falls within s 424A; see NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [8] per Branson J. 96 Moreover, I do not consider that s 426(3) had any bearing upon the RRT's obligations in the circumstances which arose in this case. This is because the question was not whether the RRT should have had regard to the applicant's wishes. The RRT had in effect called Mr Chohaili in his written testimony. The question which arose was whether, in the light of what the RRT had said to the applicant about the favourable nature of Mr Chohaili's evidence, it came under an obligation to notify the applicant that it proposed to reject Mr Chohaili's evidence in order to achieve procedural fairness. 97 Accordingly, it seems to me that the common law rules of procedural fairness applied to the circumstances of this case. The RRT could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding. 98 In my view, the applicant had a "legitimate expectation" that the evidence would be accepted. This did not compel the RRT to accept the evidence but it did require the RRT to give him notice and an adequate opportunity to put a case against the rejection of Mr Chohaili's evidence; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kioa v West (1985) 159 CLR 550. 99 It is true that there was no evidence before me as to what Mr Chohaili might have said if he was called to the witness box. As a general rule, a denial of procedural fairness will not of itself result in jurisdictional error unless it can be seen that compliance with the rules of natural justice could have made a difference to the outcome; see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82. 100 Here, the denial of procedural fairness deprived the applicant of the opportunity to make submissions about the evidence of an independent witness of fact whose evidence could, if properly considered, have resulted in a different view of the credibility of the applicant's case and therefore a different outcome before the RRT. This constituted jurisdictional error prior to the enactment of the privative clause but it is not reviewable under s 474 of the Act if the Hickman provisos are satisfied; see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [648] per von Doussa J with whom Black CJ and Beaumont J agreed. Decision on Error of Law - Failure to Consider M & K's written submissions 101 As stated at [28] above, O'Loughlin J found at [22] that the RRT committed an error of law in failing to refer to the contents of M & K's submissions. 102 His Honour referred, at [16] to three items which were omitted. The first was a statement that there is substantial evidence of persecution of Sabians which was supported by an extract from the US State Department Annual Report for an unidentified year. 103 In the Second Decision, the RRT referred to the US State Department's 2001 Annual Report. This seems to be a more recent report than the reference cited by M & K. Accordingly, I do not think that the failure to refer to the earlier report was a material omission. 104 The second item was an article by Jorunn Jacobsen Buckley. This was referred to in the Second Decision. 105 The third item was an extract from a work entitled "The Journal for the Study of Research into the Mandaean Culture, Religion and Language". It stated:- "Even today, a Moslem will not allow a non-Moslem to touch store merchandise. Indeed, a Mandaean must ask for a certain item and then the Moslem will hand it to that Mandaean. Of course, the item cannot be returned because it has become polluted, due to being touched by a non-Moslem. In fact many stores require Mandaeans to bring their own tongs to select the merchandise." 106 There was no reference to this item in the Second Decision. However, the RRT found that the applicant had encountered harassment in daily life "such as being abused for touching food while shopping." 107 I am not persuaded that the omission of this item of country information of itself gives rise to a conclusion of the RRT failed to address M & K's submissions. However, it does seem to me that the issue which arises is whether the omission was one of the indicia of another error of law, namely a failure to address the question of whether the acts of discrimination complained of by the applicant amounted to persecution. Decision on Error of Law - Failure to Consider the Definition of Persecution 108 The RRT acknowledged that even though it found that the applicant had fabricated his claim of a relationship with his Muslim girlfriend, it was still necessary to consider whether his broader claim of fear of persecution as a Sabian had been established. 109 In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [65], McHugh J said that, for the purposes of the Convention, persecution is:- . unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason . which constitutes an interference with the basic human rights or dignity of that person or the persons in the group . which the country of nationality authorises or does not stop, and . which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." 110 McHugh J's judgment was in dissent but the statement of principle which I have set out is generally accepted as an accurate definition which is consistent with the statutory definition of "persecution" in s 91R of the Act. 111 The RRT made a number of findings that discriminatory conduct was directed at the applicant and against Sabians as a group. 112 There were eight findings on this question: first, that Sabians' protection was only partly restored by the Presidential fatwah; second, that the schooling of the applicant's sister was terminated because she had been pressured to convert to Islam; third, that the applicant encountered harassment in daily life eg being "abused" for touching food; fourth, that access to government jobs and universities was "restricted" for Sabians. 113 The fifth finding was that members of minority religious groups (which must have included Sabians) suffered discriminatory government policies including discrimination in the courts; sixth, "some Muslims" target Sabians for "trouble"; seventh, Sabians are harassed at Woomera Detention Centre by "bigoted" Muslims but not by the majority of Muslim detainees; eighth, that although the vast majority of Muslims in Iran do not persecute Sabians, "bigots" air their prejudices. 114 The RRT dealt separately with each of these findings in considering whether they amounted to persecution. I will not list each conclusion. I have set them out at pars [69] to [73] and [77] to [80] above. The effect of the RRT's findings was that these "inconveniences" did not amount to persecution. The question which arises is whether the RRT, in finding that these discriminatory practices did not amount to persecution, asked itself the question of whether these acts were so oppressive that the applicant could not be expected to tolerate them. Of course, it was not necessary for the RRT to set out each of the limbs of McHugh J's definition. It was sufficient for the RRT to consider the substance of the test. 115 In my view, the RRT did address in general terms the question of whether each aspect of the discriminatory practices to which it referred was so oppressive as to amount to persecution. It is not for me to express a view as to the answers which the RRT gave to the questions. They were a matter for the RRT and cannot be the subject of judicial review because to do so would be to embark on a consideration of the merits. 116 I was troubled by the fact that no reference was made to the item of country information cited by M & K to the effect that Sabians cannot handle food in shops owned by Muslims. However, on balance, I do think that the RRT addressed the question. 117 In the passage which I have set out at [82] above, the RRT said that it had considered the claims of discrimination cumulatively. The RRT was not satisfied that, taking the applicant's claims cumulatively, he had been persecuted on the ground of religion or membership of a minority ethnic group. I do not consider that it is open to me to go behind that finding on the question of whether the RRT made an error of law in failing to address the issue of persecution. However, this does not affect the outcome on the question of bias which I will deal with below. 118 In SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 ("SBAU"), Mansfield J held at [58] that, on the findings made by the RRT in that case, the RRT did not address the question of whether the discriminatory conduct to which the Sabian applicants were exposed was so oppressive that they could not be expected to tolerate it. Of course, each case depends upon its own facts and upon the reasons given by the RRT. Here, I am unable to find that the RRT failed to address the issue of persecution. Bias 119 In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 ("SCAA") at [35], von Doussa J noted counsel's acceptance of the proposition that the privative clause contained in s 474 of the Act would not preclude review of a decision where the RRT did not act in good faith. His Honour said that this would include most cases of actual bias. 120 von Doussa J reiterated this view in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [630]. His Honour's views on this issue were concurred in by Black CJ and Beaumont J. 121 In SCAA at [36] to [38], von Doussa J set out the principles which apply to the question of whether a finding of actual bias is to be made. The relevant considerations are:- · First, actual bias arising from pre-judgment involves a state of mind by the decision-maker which is committed to a conclusion already formed. The question which arises is whether the decision-maker's mind is open to persuasion. · Second, the party alleging bias carries a heavy onus. · Third, it is wrong to jump too readily from faulty or misconceived reasoning to a finding of bias but errors of reasoning may be so egregious as to warrant a finding that the decision-maker has prejudged the case. · Fourth, it will be a rare case where actual bias can be demonstrated solely upon the published reasons but conduct of a decision-maker which is antithetical to a party's interests such as hostile attitude at the hearing may enable an inference of bias to be drawn. 122 His Honour also observed at [37] that a finding of actual bias against a decision-maker is a grave finding and cannot be made lightly. 123 Similar views were expressed by Mansfield J in SBAU at [28] to [32]. 124 I have given this issue anxious scrutiny but have come to the view that the transcript of the hearing on 24 July 2001 and the reasons given by the RRT reveal actual bias on the part of the decision-maker. 125 The approach taken by the decision-maker at the hearing demonstrated, in my opinion, an attitude of hostility to the applicant's case which revealed that the RRT member was not open to persuasion. The matters which have led me to this view are set out in the passages at [37] to [52] above. 126 Having stated initially that the applicant could have a few days to consider the statement, the RRT member changed course and allowed the applicant only about 10 minutes to enable the interpreter to translate it. The RRT member then, in the form of a leading question, asked the applicant whether he was satisfied that he did not need Mr Chohaili to give oral evidence. 127 The effect of the passages of the transcript which I have set out at [37] to [41] satisfy me that the RRT member set out to persuade the applicant that it was unnecessary to call Mr Chohaili to give oral evidence. When these passages are read in the light of the hostility expressed to the applicant's case in other passages of the transcript which I have quoted, it seems to me that the inference is open that the RRT member's mind was closed from the outset. 128 The other passages which I have quoted from the transcript reveal at [44] to [52], as was submitted by Mr Barrett, a parody of the applicant's evidence about the serious consequences which flowed from his relationship with his Muslim girlfriend as well as sarcasm and outright disbelief of the applicant's claims. 129 I do not consider that the RRT member was actuated by malice but it is unnecessary for a finding of malice to be made. 130 The closed mind of the RRT member is further evidenced by the findings made in the Second Decision. The findings which were made as to the implausibility of the claim that the applicant had a clandestine relationship with a Muslim woman seem to me to contain flawed and illogical reasoning. 131 I do not see why the applicant's "negative views about Muslims", at [58] or perhaps more accurately, his fear of them, is in any way at odds with his stated intention to marry a Muslim notwithstanding the impediments to official acceptance of such a relationship. The applicant was 21 when he says he met his girlfriend. She was 16. Mr Barrett referred to "Romeo and Juliet" as a reminder of this sort of relationship. Also, Mr Chohaili did not consider it implausible. 132 The finding that the applicant's claim of love for the girl was at odds with his failure to protect her, at [59], ignores all the objective evidence that Sabians are not in a position to protect anyone, especially a young Muslim girl, from parents who were said to be hostile to her relationship with a Sabian. 133 Also, the finding that it was not believable that the applicant's family failed to complain to the authorities after they were physically attacked, at [60], ignores the objective evidence of discrimination against Sabians in the courts. The passage of country information which was cited in support of the finding has the opposite effect. 134 The finding that the applicant's address as stated in his application for a protection visa was inconsistent with his claim that he was hiding at his uncle's house for three weeks before his departure, at [61], seems to me to be quite flawed. I do not see why a temporary hiding place ought to have been shown as a place of residence. 135 The finding that the applicant's evidence should not be accepted because he said that the girl's family made false allegations only after they knew he left Iran, at [62], does not fairly state the evidence. It is true that the applicant made that statement at the hearing but he quickly corrected himself and said that this was not what he meant. He said that what he meant was that when they could not find him at his house, the girl's parents raised the complaint. 136 I do not propose to repeat all of the findings about the "concocted relationship" made by the RRT. I have set them out in detail above at [57] to [65]. In my view, all of the findings are so strained against the applicant's case that they reveal a mind which was closed to any other outcome. 137 I may not have been prepared to make a finding of actual bias upon the basis of the Second Decision standing on its own. However, it seems to me that when the reasons are read in light of the attitude taken at the hearing, the heavy onus which the applicant bears is made out. 138 I have borne in mind that O'Loughlin J at [22] did not consider the RRT's findings about the applicant's relationship with his girlfriend to be illogical. However, the transcript of the oral hearing and the reasons given in the Second Decision go far beyond the matters which were before his Honour. 139 Finally, I do not consider that the quotations from the country evidence relied upon by the RRT in the Second Decision were so selective as to indicate bias on that ground. Nevertheless, it is sufficient here for me to make a finding that the RRT member's mind was closed for the reasons given above. Conclusion 140 The orders which I propose to make are that the Second Decision is to be set aside, the matter is to be remitted to the RRT for further consideration according to law and the respondent is to pay the costs of this application. I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Date: 19 December 2002 Counsel for the Applicant: Mr G F Barrett QC

Solicitor for the Applicant: Refugee Advocacy Service of South Australia