"Applicant LSLS" v Minister for Immigration & Multicultural Affairs [2000] FCA 211

MIGRATION LAW - application for review of Refugee Review Tribunal decision affirming rejection of application for protection visa - applicant a Sri Lankan man who feared persecution on basis of his homosexuality - whether persecution in a Convention sense - where Tribunal found that applicant could reasonably avoid persecution by being "discreet" - whether Tribunal properly considered inherent characteristics of the social group constituting homosexuals - whether applicant's membership of social group affected by requirement of discretion - whether requirement of discretion an error of law - whether any evidence or other material upon which Tribunal could find that applicant could avoid persecution by being "discrete" - whether Tribunal member biased as a result of having published material on Internet which included statement that applicants for refugee status often untruthful - where decision did not turn on finding as to applicant's credit - whether decision induced or affected by actual bias - whether apprehended bias a ground for review

Migration Act 1958 ss 420, 476

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577

Singh v Minister for Immigration and Multicultural Affairs (Federal Court, unreported 27 October 1999)

Besim Ferati v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 23 December 1998)

Vakauta v Kelly (1989) 167 CLR 568

Jia Le Geng v Minister for Immigration and Multicultural Affairs (1999) FCA 951

The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

"APPLICANT LSLS"

v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG642/98

RYAN J

MELBOURNE

6 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 642 OF 1999

BETWEEN:

"APPLICANT LSLS" Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: RYAN J

DATE OF ORDER: 6 MARCH 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.     The application be dismissed

2.     The edited reasons for judgment published this day stand in lieu of the reasons published to the parties and their legal advisers on 28 February 2000 and that the latter reasons be kept confidential and not published to any other person.

3.     The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 642 OF 1999

BETWEEN:

"APPLICANT LSLS" Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: RYAN J

DATE: 6 MARCH 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 28 October 1998 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

The Applicant's Claims and Evidence

2. The grounds upon which a decision of the Tribunal may be reviewed in this Court are set out in s 476 of the Migration Act 1958 ("the Act"). By way of background to the present review, it is necessary to outline the applicant's claims and the evidence which was before the Tribunal.

3. The applicant is a Sri Lankan man of Sinhalese ethnicity, who lived in Sri Lanka, until he came to Australia in 1996 as a student. On the date when his extended student visa expired, he applied for a protection visa, asserting that he feared persecution as a homosexual should he return to Sri Lanka. The persecution which the applicant claimed to fear would be manifested, it was said, by discrimination in employment and public life, rejection by his family, potential prosecution under Sri Lankan criminal statutes, police harassment, violence at the hands of members of the public and a failure by Sri Lankan authorities to protect him from such violence.

4. The applicant's background is set out in a letter from his representatives to the Department of Immigration and Multicultural Affairs ("DIMA"). The letter is reproduced in the Tribunal's reasons and with certain identifying observations deleted was in the following terms:

"The applicant was born in Sri-Lanka ........... .................. At college, the applicant kept the company of girls and shunned other boys. As a result of this association with girls, the classmates of the applicant and some boys in the village often made derogatory remarks to and about him. He was frequently called kela kela (female female) which meant that he was gay. The applicant was also called ponneya (gay).

At the age of 13 years or thereabouts, the applicant was not allowed to mix with girls due to Sri-Lankan custom. The applicant instructs us that he made friends with some "unaggressive" boys. He was soon branded a homosexual.

After these difficulties, his classmates boycotted him and often threw chalk at him. His lesson notes and books were often stolen, torn or thrown away. His teachers, ................., often prayed for him so that he could become heterosexual. He was branded a sinner by both teachers and schoolmates. When the applicant reported these harassments to his teachers, he was advised that he was deserving of this treatment.

At one stage, some parents who formed part of a parents' group requested the [School Principal] to throw the applicant out of school. He was often not allowed to get into the school bus or to sit beside anyone else. Whenever the applicant sat on a bus seat next to someone else, that person would either move away or ask the applicant to sit somewhere else.

The news that he was homosexual finally reached his father who became very angry with the applicant. The applicant was prevented from communicating with his relations and was not allowed to attend family functions such as parties and weddings. By way of punishment, his father prohibited him from wearing long trousers on the basis that only men wear long trousers. He was frequently teased by other classmates who often pulled hair from his legs. Some boys who were even mildly sympathetic towards him were branded homosexual. As a result of this pressure, the applicant failed his senior school certificate examination. When he was 16 years of age, the applicant was tied to a tree by his father who mercilessly beat him with branches.

At home, the applicant was provided with the basic necessities of life such as food and shelter but never received affection from his parents, brothers or relations. He was considered a disgrace to the family and was often branded by them a sinner who should be stoned to death.

He later met one boy who was a year younger than him and they often met secretly. However the news of this relationship reached his father who threw him out of the house. The applicant went to live with a family friend. A friend of the applicant's elder brother who was a qualified doctor in medicine approached the family and asked them to take the applicant back home.

The applicant was widely known around town as a "homo" man. The parents of the applicant's friend also send [sic] their child to the United States as he, too, could not remain the village. As a result of these childhood experiences, the applicant has been emotionally scared [sic] and he has often thought of committing suicide. His parents provided the money to the applicant to travel to Australia to continue his studies. However the real reason why the family sent him to Australia was to get rid of him. His father had to sell a valuable piece of property to finance his son's trip to Australia.

Our client instructs us that many of his countrymen are Sinhala Buddhists. A small minority of the Sri Lankan population is Catholic. Since members of Catholic orders are not allowed to marry, we are advised by the applicant that many Buddhists are very suspicious of them and assume that they are homosexual. For this reason, some Catholic priests and brothers give the impression that they are very much against homosexuals and the applicant has not been able to receive any support from them.

The father has advised the applicant that he would not be inheriting anything from the family. The applicant's father does not wish the applicant to return to Sri Lanka."

5. The Tribunal found that these claims were not fully made out.

Grounds of Review

6. The applicant's contentions, apart from those directed to the question of bias, appear to be founded in the Tribunal's determination, expressed in various ways several times in the determination and encapsulated as follows, at p 28:

The evidence is that [the applicant] can avoid a real chance of serious harm simply by refraining from making his sexuality widely known - by not saying that he is homosexual and not engaging in public displays of affection towards other men. He will be able to function as a normal member of society if he does this.

7. Implicit in this finding of the Tribunal is the view that a level of discretion for the purpose of avoiding persecution is to be expected of the applicant. The consequential further finding of the Tribunal was that the level of discretion which it imputed as necessary to avoid persecution is "reasonable" in that it would not require the applicant to retreat from any of the identifying features of the social group to which he belongs.

8. The applicant has, substantively, sought to establish two contentions in respect of this finding. First, he contends that a characteristic which identifies his membership of a particular social group includes a right to public proclamation of his homosexuality for the purpose of meeting prospective sexual partners. Consequently, so the argument went, to impose on the applicant a degree of discretion which would inhibit such a proclamation in order to avoid persecution would not deprive the applicant of a convention reason and would amount to an error of law.

9. Counsel submitted, secondly, that it is impossible, on the evidence available to the Tribunal, to reconcile the practice of a homosexual preference with the degree of discretion required to prevent public knowledge and ultimately, persecution. The finding that the two could co-exist was said, therefore, to be unsupported by any evidence.

10. The applicant has also attacked the Tribunal's decision as exhibiting a failure to act according to the substantial justice and the merits of the case as required by s 420 of the Act, in that the decision was said to be affected by an apprehension of bias on the part of the relevant Tribunal Member. Such a failure is, Counsel submitted, reviewable by virtue of s 476(1)(a) of the Act. The alternative submission on this aspect was that the decision suffered from being "induced or affected" by actual bias, a ground of review provided for under s 476(1)(g) of the Act.

The Convention

11. Section 36 of the Act is in the following terms:

(1)  There is a class of visas to be known as protection visas.

(2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

12. "Refugees Convention" is defined in s 5 of the Act as:

"the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;"

13. Section 5 also defines "Refugees Protocol" as:

"the Protocol relating to the Status of Refugees done at New York on 31 January 1967;"

14. By Article 1A(2) of the Convention as amended by the Protocol, Australia has obligations of protection to an applicant who:

"owing to 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, is unable or, owing to such fear, is unwilling to return to it."

Persecution in a Convention sense

15. The Tribunal determined that the applicant would be at risk of persecution, in a Convention sense, were his homosexuality to become public knowledge. The Tribunal's treatment of the incidents of persecution reported by the applicant was not, in the event, crucial to the ultimate determination of the matter, and whether they can properly be characterised as "persecution" in a Convention sense was not raised as an issue before this Court. However, there may be a real question as to whether some, though not all, of the incidents described lack the "official" characteristic of persecution in a Convention sense as described in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, where Brennan CJ states (at 334):

"The feared "persecution" of which Article 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer "continue to refuse to avail himself of the protection of the country of his nationality" if "the circumstances in connection with which he has been recognised as a refugee have ceased to exist". As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant "circumstances", those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality (Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 at 16-17)."

McHugh J made the same point in this way (at 354):

"The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality."

Did the Tribunal err in law (s 476(1)(e))?

16. The Tribunal based its determination, in part, on the proposition that the applicant could have no well-founded fear of persecution if he could avoid persecution by practising his homosexuality "discreetly". The applicant attacks this approach, characterising it as an error of law.

17. The reasoning of the Tribunal on this issue does not, contrary to the applicant's submission, render illusory the ability of the applicant to give practical expression to his sexual preference. The difficulty in reconciling the approach of the Tribunal with the applicant's argument arises from the Tribunal's finding that a homosexual lifestyle can be conducted in Sri Lanka "discreetly", and, if so practised, will not render the applicant liable to persecution in a Convention sense. However, the applicant asserts that the "discreet" manner in which, on the Tribunal's approach, he would be required to express his sexuality, even if the evidence establishes that such "discreet" practice of homosexuality is tolerated in Sri Lanka, strikes at a feature of his identification with the relevant "social group" so that he would still suffer from a well-founded fear of persecution by reason of his identification with a social group if he were to exercise the requisite degree of discretion.

Tribunal's identification of the inherent characteristics of the applicant's social group.

18. The feature of the identified social group which the Tribunal's decision is said to disregard is the public proclamation of homosexuality for the purpose of meeting prospective sexual partners. The applicant's contentions were not confined to this feature. It was also suggested that there is a "bare" right to public proclamation of one's sexuality which would be circumscribed by the Tribunal's requirement that the applicant exercise discretion. Because it infringes the presumed right, the Tribunal's requirement, on this argument, is unreasonable. However, the Tribunal found against the existence of any right of the kind asserted.

19. I detect a difference between the right of "proclamation" asserted by the applicant and the right of more indiscriminate disclosure, which has been denied by the Tribunal. The Tribunal was able, in the passage quoted at para 26 of these reasons, to conclude that the applicant could safely practise his homosexuality in Sri Lanka "provided that he does not openly proclaim himself to be a homosexual or parade his sexual expressions in public." The nature of the restriction on homosexual activity which the Tribunal was inclined to regard as not unreasonable, was also illustrated by these quotations from earlier decisions of the Tribunal, constituted by the same member:

"It is all a question of what one means by being "discreet". If this is taken to mean giving up a fundamental human right, then clearly the expectation or requirement is not reasonable. If, on the other hand, it means giving up something less, then it may well be reasonable.

For example, if a homosexual can only avoid persecution by avoiding all sexual activity, even consensual sexual activity in private, the requirement to do so would be unreasonable. If, however, he can avoid persecution by refraining from overt sexual activity in public places, I would not consider it unreasonable to require him to do so."

20. Then, after referring to another decision, in a similar context, by the Tribunal constituted by Mr G Brewer, the Tribunal's reasons in the present case continued:

"The two non-Australian cases cited do not, it seems to me with respect, sufficiently distinguish between active concealment, or suppression, of one's sexuality and non-proclamation of it. While it may indeed, as I suggested in my own decision, be an infringement of a fundamental human right to be obliged to suppress one's sexuality, it does not follow that it is an infringement of a fundamental human right if one is required, for safety's sake, simply not to proclaim that sexuality openly. I do not believe there is a fundamental human right to proclaim one's sexuality openly.

I believe that [Woudneh v. Rodney Inder and Minister for Immigration, Local Government and Ethnic Affairs, (unreported, Federal Court of Australia, Gray J, 16 September 1988)] should be distinguished. That case concerned freedom of religion. Freedom of religion is of course a fundamental human right. Furthermore, the public profession of one's religion will normally be an essential part of the practice of one's religion - public manifestations of religious belief and worship being part of what is involved in the concept of religion - so the inability to publicly profess and practice one's religion is a clear violation of freedom of religion. This is not the case with sexuality. People of many different sexual orientations exist in society and practise their sexual preferences privately without feeling a need to proclaim those preferences to the world. Public manifestation of homosexuality is not an essential part of being homosexual.

In relation to Sri Lanka, the requirement is not that the applicant should lead a "hidden, inconspicuous lifestyle". The evidence is that he can avoid a real chance of serious harm simply by refraining from making his sexuality widely known - by not saying that he is homosexual and not engaging in public displays of affection towards other men. He will be able to function as a normal member of society if he does this. This does not seem to me to involve any infringement of fundamental human rights."

21. After referring to a passage from another decision of the Tribunal, differently constituted, to the effect that "it is unacceptable to require a person to deny their sexuality" the Tribunal, in the present case, concluded the discussion on this issue by observing:

"Again, with respect, it seems to me that this passage fails to recognize the essential distinction between denial/suppression and non-proclamation, and the vital distinction between religion and politics, which require public manifestations, and sexuality, which does not.

It seems to me that the fundamental question to be kept in mind is whether the behaviour which the applicant is required to adopt in order to avoid possible persecution is behaviour which it is reasonable, in all the circumstances, to expect him to adopt. In this respect, the issue is much the same as the issue of internal flight as addressed in the test formulated by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265. The issue there, too, was what an applicant should be expected to do in order to avoid persecution in part of the home country. The test contemplated that an applicant might be expected to relocate to another part of the country notwithstanding that this would, in effect, involve some sacrifice of his or her freedom of movement (a human right under Article 12 of the International Covenant on Civil and Political Rights) and that therefore the applicant would be treated disadvantageously in comparison with other groups in society who did not need to give up any part of that right. By analogy, it seems to me that a homosexual applicant can reasonably be expected to refrain from publicly proclaiming or flaunting his sexual preferences if this is a means by which he may be safe from persecution."

22. Those passages, by their use of expressions like "parade" and "flaunt" indicate that the Tribunal regarded the asserted right of "proclamation", which it declined to recognise, as embracing more gratuitous and indiscriminate forms of disclosure than those necessary to identify prospective partners in consensual sexual activities. The applicant relied only on the latter forms of disclosure by contending that persecution would follow any but the most secretive, furtive expression of his sexual orientation. That contention, the Tribunal found, as a matter of fact, had not been made out.

23. The applicant did not contend that the persecution which he feared would result from his undertaking "public proclamation" in the sense in which the Tribunal used that concept. He did not suggest, for example, that he intended to agitate in support of "gay rights", a form of political activity of which a degree of public proclamation might be regarded as a necessary incident. The applicant's case did not seek to establish, except by mere assertion, that public proclamation is a necessary incident of life as an active homosexual in Sri Lanka. Had the Tribunal regarded that as a matter on which it was required to make a finding, it would probably have been precluded by the absence of relevant evidence from resolving it in the applicant's favour. However, that is not a matter on which I have to express a concluded view.

24. I have therefore confined my examination of this issue to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result.

Tribunal's finding as to "reasonable discretion".

25. The task in resolving the difference between the arguments on this aspect of the review is to ask whether the Tribunal had proper regard to the practice of a homosexual lifestyle in the sense just discussed. I do not think that it can be correct to characterise the Tribunal's treatment of this issue as an error of law under s 476(1)(e), because the Tribunal has clearly regarded a homosexual lifestyle as including the need to meet prospective sexual partners and to develop and maintain a meaningful same-sex relationship, before going on to find that the lifestyle which it was considering can be pursued "discreetly".

26. That this was the Tribunal's reasoning process is revealed by these passages from its decision:

The more difficult question is whether the applicant, as a homosexual, may live a reasonably normal life in Sri Lanka without having to abandon any of his fundamental human rights. In answering this question, it is proper to take into account the attitudes of others and of society in general in order to determine what kind of lifestyle it is open to him to lead.

Having regard to the above information, I think the reasonable conclusion must be that a homosexual man in Sri Lanka is able to practise his sexuality safely provided that he is discreet. That is to say, provided that he does not openly proclaim himself to be a homosexual or parade his sexual preferences in public. (at p 22)

27. That the Tribunal considered that the "fundamental human rights" of the applicant included those necessary to engage in a homosexual lifestyle is made clear by the reliance the Tribunal Member placed on an earlier decision of his own, the relevant part of which is set out in the reasons as follows:

It is a question of fact that is involved as to whether a homosexual can indeed avoid persecution by the reasonable exercise of discretion. The evidence suggests to me that in Beijing (though not in Shanghai) at the present time, there is a real chance that a homosexual could face persecution even if he were discreet in his conduct; he could probably avoid this only by giving up private consensual sexual activity altogether, or almost altogether. After all, a homosexual can normally only instigate such activity by revealing his sexual proclivities in the hope of meeting a responsive partner; yet, in Beijing at the present time, it seems that such revelation could result in persecutory treatment, even though the actual sexual activity took place in private between consenting adults. If a person is unable safely to reveal his or her sexual preferences, and the consequence is that he or she is unable safely to engage in private consensual sexual activity, then it seems to me that we have a violation of a fundamental human right such that the protection of the Convention is legitimately attracted" (at pp 24-25)

28. An error of law could readily have been imputed to the Tribunal had it acknowledged, on the one hand, that the practice of a homosexual lifestyle as a whole is "protected" by the operation of the Convention, but, on the other, had denied the applicant all means of meeting prospective sexual partners, thereby reasoning that the Convention does not, as a matter of law, "protect" a part of the activity of a particular social group that is necessary and integral to the defining characteristic of that group. That erroneous reasoning would render illusory the protection afforded by the Convention, but I am not persuaded that the approach of the Tribunal has been infected by that error and this ground is not made out.

29. In truth, this complaint of the applicant is that the line drawn by the Tribunal between what it is, and is not, reasonable to require of the applicant in order to avoid persecution should not, on the material available to the Tribunal, have been drawn where it evidently was. The strong injunctions against merits review of Tribunal decisions which have been expressed in many recent authorities are a reminder that consideration of a complaint of this kind is allowed only to a limited extent. It is within the permissible limits to ask whether there was evidence to justify the Tribunal's determination that the applicant could avoid persecution by being "discreet", consistently with the practice of a homosexual lifestyle of the extent under the consideration of the Tribunal. This question is discussed below in relation to s 476(1)(g).

30. The further error of law contended for by the applicant is the Tribunal's treatment of the effective criminalisation of homosexuality by the Sri Lankan Criminal Code. The finding of the Tribunal in this respect was that these laws were not, in practice, enforced "to any significant extent" and that the applicant, therefore, did not have a well-founded fear of persecution on that basis. This is said to be a misapplication of the test laid down by the High Court in Chan Yee Kim v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan").

31. The Tribunal's use of the phrase "to any significant extent" does not strictly accord with any of the descriptions in Chan of the degree of satisfaction required for making such a determination. However, in the context in which the phrase was used, I am unable to say that this criticism is anything more than "pernickety" (per Kirby J, Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1998) 151 ALR 711 at 714, referring to the earlier case of Wu Shan Liang v. Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259), and it does not entail an error of law.

Was there evidence to justify the decision of the Tribunal (s 476(1)(g))?

32. The Tribunal clearly accepted that, unless the applicant could express his sexual preference with a degree of discretion that would prevent his homosexuality from becoming public knowledge, he would be likely to be subject to persecution of one sort or another. The finding of fact made by the Tribunal in this respect was (at p 28):

"The applicant could avoid a real chance of serious harm simply by refraining from making his sexuality widely known by not saying that he is a homosexual and not engaging in public displays of affection towards other men. If he so acts he will be able to function as a normal member of society."

33. As stated above, so far as the Act allows this Court to review a decision of the Tribunal, the relevant complaint of the applicant is that there was no evidence or other material upon which the Tribunal could have made this finding which is, as earlier explained, predicated on the basis that his "function as a normal member of society" must include the ability to pursue a homosexual lifestyle, including, for example, meeting prospective sexual partners. It should, again, be stressed that this Court is unable to review a decision simply because the material upon which it is based is not entirely persuasive, or because the Court, if deciding the matter for itself, would have been led to a different decision by the whole of the evidence.

34. The evidence tending to establish that homosexuals are persecuted in Sri Lanka was significant, whereas the evidence showing that "discreet" homosexuality is tolerated was far less so. Nevertheless, some such evidence was clearly within the contemplation of the Tribunal. Examples of this can be found in the "country" information, set out at pp 14-22, which includes the following passages:

Although homosexuals in Sri Lanka are not being prosecuted, in general they are not open about their sexuality. Many believe that to be publicly homosexual is taking a major social risk. However, there is a social acceptance of discreet homosexuality, depending on individual circumstances such as social status, class, ethnicity, economic circumstances and workplace. ... The public's attitude reflects a tendency to accept homosexuality as long as it is not overt. (at p 15)

In practice, the provisions of the law [criminalising homosexuality] are seldom if ever enforced against consenting adults. In most cases charges are only brought where there is some additional element, such as the fact that the acts took place in public ... or involved soliciting. ...

It was suggested to us that there is a certain degree of tolerance and acceptance of homosexuality in Sri Lanka ... However, such tolerance and acceptance is not outwardly acknowledged. (at p 17)

35. It will be apparent from this examination of the reasons of the Tribunal that the ground of review established under s 476(1)(g) is not made out.

Did the Tribunal fail to follow required procedures (ss 420(2) and 476(1)(a))?

36. The applicant seeks to show that the Tribunal failed to act according to substantial justice and the merits of the case as required under s 420 of the Act. That failure is said to have been constituted by the Tribunal's treatment of a number of evidentiary issues and an apprehension of bias on the part of the Tribunal. Before examining whether a failure to comply with s 420 has been demonstrated, it is necessary to consider whether, in light of the recent High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, such a failure, if made out, can be rectified by this Court having regard to s 476(1)(a) of the Act.

37. The effect of that decision can be gleaned from the following passages which establish that the jurisdiction of the Federal Court is defined by s 476 of the Act and it is not appropriate to import additional grounds of review by resort to the existence of s 420. That section does not mandate specific procedures, failure to comply with which will render a determination reviewable under s 476(1)(a).

38. In Eshetu (supra), Gleeson CJ and McHugh J said, at 588:

"The relationship, or lack of it, between s 420 and s 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs(Federal Court of Australia, 6 May 1997, unreported). The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

Section 420 is to be understood in its statutory context. It appears in Pt 7 Div 3 of the Migration Act, which is headed "Exercise of Refugee Review Tribunal's powers". The following two sections deal with the constitution of the tribunal. Part 7 Div 4 deals with the procedures to be adopted by the tribunal. Part 7 Div 5 deals with similar matters. There follows Pt 8 of the Act, which includes s 476, and which provides a set of provisions which confer, and define, the Federal Court's jurisdiction to review tribunal decisions.

Davies J, in the Full Court of the Federal Court (1997) 71 FCR 300 at 305, took the view that the requirement of s 420 that the tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case, meant that, notwithstanding the terms of s 476(2), if there were a contravention of that requirement the decision of the tribunal may be set aside. Burchett J (1997) 71 FCR 300 at 320, treated s 420 as conferring rights which s 476(2) did not take away. However, the language, and the purpose, of s 476(2)(b) is clear. The provision was intended to define the jurisdiction of the Federal Court in relation to judicial review of the tribunal's decisions by excluding as a ground of review the ground relied upon by Mr Eshetu."

39. At 600, Gummow J said:

"A provision such as s 420(2) does not exclude consideration of the question (on an application under s 75(v) of the Constitution for prohibition addressed to officers of the Refugee Review Tribunal (the tribunal)) whether or not there was evidence upon which the minister attained the state of satisfaction referred to in s 65 of the Act. The significance of s 65 appears later in the reasons dealing with the application under s 75(v) of the Constitution.

With respect to the interrelation between s 420 and the statutory ground of review in para (a) of s 476(1), Lindgren J in Sun concluded that the better view was that s 420 did not establish procedures of the kind identified in the later provision. His Honour described s 420 as containing "general exhortatory provisions, the terms of which do not confirm to the common understanding of a 'procedure' ". This, to his Honour, signified "the steps, more or less precisely identified, which are or may be involved in particular proceedings". In particular, the direction in s 420(1) that the tribunal pursue the objective of "providing a mechanism of review that is fair, just, economical, informal and quick" did not amount to a requirement that the tribunal observe a procedure in connection with the making of a particular decision for the purposes of para (a) of s 476(1)."

40. These conclusions on the relationship between ss 420 and 476(1)(a) do not, in my opinion, leave any room to entertain this ground of appeal and accordingly, it must fail.

Was the Tribunal decision affected by bias (s 476(1)(f))?

41. The applicant also challenges the Tribunal's decision as affected by actual or apprehended bias. Whilst actual bias remains a ground for review by this Court, it is clear that apprehended bias does not, either as a failure to comply with s 420 which is discussed above, or otherwise (see Singh v Minister for Immigration and Multicultural Affairs (Federal Court, unreported 27 October 1999) ("Singh")).

42. The basis upon which the Tribunal's decision is said to be infected by actual bias is the same as that which, in Besim Ferati v Minister for Immigration and Multicultural Affairs (Federal Court, unreported, 23 December 1998) ("Ferati"), led to a finding that a decision of this Tribunal, identically constituted, had been vitiated by an apprehension of bias evoked by comments published on the Internet homepage of the Tribunal member, Dr Rory Hudson. The factual background to the publication of the relevant comments, and the comments themselves, are sufficiently set out in Ferati in the following paragraphs:

The feature I have mentioned arises out of Dr Hudson's home page on the Internet which he published on 21 October 1997. On the home page Dr Hudson speaks of his family background, education and travels. He says that from 1988 to 1993 he worked in the Human Rights Branch of the Attorney-General's Department in Canberra. He there became involved in refugee issues, including being the Attorney-General's representative on the Determination of Refugee Status Committee.

Although the work in the Attorney-General's Department suited him very well, he found that

"after many years in the Commonwealth Public Service I was chafing at the system of bureaucracy, the lack of independence, the lack of initiative, the political interference, the patronage and favouritism."

He saw an advertisement looking for lawyers to work in Hong Kong on a voluntary basis to assist Vietnamese asylum seekers. In 1992 he worked on this project for five months, using his long service leave and recreation leave.

Upon his return to Canberra he applied for and was appointed to a position in the newly formed Tribunal. He then says this about work at the Tribunal:

"Working at the Refugee Review Tribunal is rewarding in many ways. One is independent and able to use one's critical faculties to accomplish something that is worthwhile, giving protection to people in need and, one hopes, ultimately promoting the observance of basic human rights throughout the world. Regrettably, the Tribunal does not often get the credit it deserves. When we find a person to be a refugee, we are criticised for being too soft; when we refuse an applicant, others complain that we are biased against refugees. But it's not like that. I think that all of my colleagues try conscientiously to reach the decision which is right. We try to avoid preconceptions one way or the other. When I was first appointed, a colleague who shall remain nameless said to me, `Let `em all in, Rory!'. But while I would like to let in to Australia at least 95% of the applicants who come to us, who are usually deserving cases and decent human beings even if they lie through their teeth (as they often do) in their desperation to find a better life, it's not as simple as that. The Government has a fixed quota of places for refugees both onshore and offshore every year. Therefore, for every person in Australia one finds to be a refugee, who is thus able to remain in Australia, another person overseas, also in deep distress, misses out. So it would not be right to find an applicant to be a refugee if they were not truly in need of protection. This means that we have to make decisions which are not easy and not pleasant to make. But it has to be done.

We work with dishonesty and corruption on all sides: foreign governments who practise the most abhorrent forms of cruelty against their citizens, immigration officials bent on keeping out as many people as they can irrespective of need; other parties who in my present position I had better not mention, applicants who weave webs of lies, lawyers and migration agents who prey on them to rip off what little money they have. In these sordid surroundings, it is, I firmly believe, only the Tribunal and the courts (and, to be fair, a small minority of honest lawyers and migration agents) who stand up for decent values and who honestly seek to do what is right."

(Emphasis added)

There follows a great deal of material about his views on various matters and particularly philosophy.

A later version of the home page has a passage:

"Various items on this page have had to be deleted recently due to my position as Member of the Refugee Review Tribunal, and will remain deleted for the duration of my holding that position".

.....

Dr Hudson has published to the world a view that applicants for refugee status, as a class, are likely to be untruthful. Literally of course that does not deny the possibility that some asylum seekers are truthful. But no asylum seeker could reasonably be expected to accept as fair a decision-maker who has already indicated a predisposition to regard asylum seekers as untruthful. An applicant would regard him or herself as starting behind scratch.

.....

Dr Hudson has expressed compassion for refugees and manifested that in a practical way by his work in Hong Kong. But his critical role in either believing or disbelieving an individual applicant is hopelessly compromised by his published preconception that applicants often "lie through their teeth" and "weave webs of lies".

43. Ferati was decided at a time when apprehended bias was thought to be a reviewable matter as evincing a failure to act according to substantial justice and the merits of the case (s 420), and, on the view of s 420 which had prevailed in this Court before Eshetu, a failure of that kind would have afforded a ground for review under s 476(1)(a). However, in light of the correction applied in Eshetu, the only ground on which the Tribunal Member's comments can arguably be reviewed by this Court is that afforded by s 476(1)(f) which requires "that the decision was induced or affected by fraud or actual bias".

44. Before considering whether the published comments of the Tribunal Member exhibited actual bias, rather than the apprehended bias found by Heerey J in Ferati, it is necessary to determine whether the decision could have been "induced or affected" by bias, given the nature of the comments and the factors upon which the decision turned.

45. Heerey J in Ferati, did not have to consider whether Dr Hudson's comments on the Internet amounted to actual bias. It was sufficient, on the view of the inter-relation between s 476 and s 420 which then prevailed, for his Honour to find, as he did, that they gave rise to a reasonable apprehension of bias. A more stringent test has to be satisfied where actual bias is said to have resulted from preconceived views expressed by a judicial officers. As Dawson J said in Vakauta v Kelly (1989) 167 CLR 568 at 575:

"Preconceptions do not necessarily mean bias on the part of the judge who holds them. As was said by Charles J. in Reg. v. London County Council; Ex parte Empire Theatre (1894) 71 L.T. 638 at 639, "preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded". And in this Court in Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd. (1953) 88 CLR 100 at 116, a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence. A judge "must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 372, I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case. That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does."

46. In Singh, von Doussa J had to consider whether the Tribunal had exhibited actual bias in circumstances which this Court had earlier decided gave rise to a reasonable apprehension of bias. His Honour said, at paras 9-11:

"The test of actual bias has been canvassed by counsel for the respondent by referring to a number of recent decisions of this Court. Counsel referred to Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, in particular at 289 and 290. The Court was directed to the following observation of Finkelstein J in that case:

"Where the courts have considered the question of actual bias the focus of the inquiry has been whether the decision-maker has brought a `closed mind' to the inquiry".

The decision is also of significance for the view expressed by his Honour that whilst most often actual bias will result from an intentional state of mind, that will not always be so. His Honour observed at 290:

"For so long as the possibility exists that bias may be unconscious there is no reason in principle why a claim should not succeed in that circumstance. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point in so far as the validity of the decision is concerned."

Counsel referred to a decision of a Full Court of this Court in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, and in particular to passages from the judgment of Wilcox J at 124 where his Honour posed the test as whether the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case. See also North J in that decision at pp 134 and 135. At p 135, North J referred with apparent approval to a decision of Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224. His Honour treated the authority as demonstrating that proof of actual bias by inference from the facts and circumstances of a case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. His Honour observed:

"It's unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias."

Moreover, Gooliah was taken as demonstrating that actual bias does not necessarily involve deliberate knowing or wilful prejudice against an applicant."

47. His Honour also referred to the majority judgments of Spender J and R D Nicholson J in Jia Le Geng v Minister for Immigration and Multicultural Affairs (1999) FCA 951, where it was indicated that actual bias is made out if the decision-maker has pre-judged a matter to be decided in the sense of having formed a concluded, as distinct from a provisional or qualified view, or has exhibited a "closed mind" on that matter. The attainment of that degree of pre-judgment, it was held, need not necessarily be intentional.

48. Applying those principles, von Doussa J held that the Tribunal had so committed itself to a view of the evidence in an earlier application by the applicant's estranged wife as to have attained a closed mind on the same, or similar, issues when they arose for decision in the applicant's application.

49. In the present case, however, the Tribunal, in the remarks on the Internet, did not advert to any of the specific matters which it had to decide on in relation to the present applicant. Dr Hudson acknowledged on the Internet that the great preponderance of applicants "are usually deserving cases and decent human beings". He regretted the tendency of those same applicants to "lie through their teeth (as they often do) in their desperation to find a better life". However, the very tenor of those remarks implicitly concedes that some applicants are generally truthful and not all are untruthful on every issue. The reference to "applicants who weave webs of lies" does not support an inference that Dr Hudson was convinced, beyond persuasion to the contrary, that all applicants are liars. As Heerey J observed:

"Dr Hudson has published to the world a view that applicants for refugee status, as a class, are unlikely to be truthful. Literally of course that does not deny the possibility that some asylum seekers are truthful."

50. Accordingly, his Honour confined himself to a finding of apprehended bias as is made clear by his prefacing his conclusion with the statement:

"But no asylum seeker could reasonably be expected to accept as fair a decision-maker who has already indicated a predisposition to regard asylum seekers as untruthful. An applicant would regard him or herself as starting behind scratch."

51. In the present case, the crucial question which the applicant failed to persuade the Tribunal to answer in his favour was whether homosexuality is tolerated in Sri Lanka to a degree which makes it possible for a homosexual to live "a normal life". The Tribunal's finding was made primarily on the "country" information which is set out at pp 14-22 of the decision. That finding was based on a comparison of other material, only to the limited extent that the Tribunal, at p 20, had regard to two letters from Sri Lankan contacts of the applicant, both in support of the applicant. In respect of those letters, the Tribunal stated:

Before discussing these sources, I should repeat my earlier observation that there is a credibility problem with the personal Sri Lankan letters. Consistently with this, the letter from the attorney contains numerous errors which one would not expect from a man in this profession. The letter from [the doctor] is more credible.

52. This treatment of the material before the Tribunal raises the question of whether the decision can have been "induced or affected" by actual bias at all, when it is remembered that the bias imputed to the Tribunal consisted of an allegedly closed mind as to the credibility of applicants generally. In the present case, the Tribunal has relied substantially, if not entirely, on material which cannot be said to be affected by an adverse, presumptively biased, finding as to the credit of applicants generally. In the event, I am not persuaded that the Tribunal's state of mind in that respect can be said to have "induced or affected" it's determination. However, if I am wrong in that conclusion, I have been unable to find, on the material, that the Tribunal brought a closed mind to the assessment of the veracity of the applicant and the letters on which he relied.

53. The applicant has sought to argue that the bias which he imputed to the Tribunal, even if not directly related to matters crucial for determination, has so infected the decision that its existence in relation to one matter (such as the applicant's credit), would entail that the whole decision was "induced or affected" by actual bias. That argument, I consider, is properly available only in respect of apprehended bias where the focus is on whether the conduct of the judicial officer or tribunal has been such that "a substantial distrust of the result must exist in the minds of reasonable persons". (The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116.

Conclusion

54. The major premise of the case for the applicant, as it was put during the hearing of this matter, is that it is essential for the applicant to communicate to others his sexual preference. The process by which the Tribunal determined, as it is open for the Tribunal to determine as a question of fact, the extent to which the applicant could safely do so without foregoing membership of the "social group" to which he belongs, was, I consider, unexceptionable. Accordingly, the order of the Court will be that the application be dismissed and that the applicant pay the respondent's costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 6 March 2000

Counsel for the Applicant: Mr I. L. Gray

Solicitor for the Applicant: Lygon Street Legal Services

Counsel for the Respondent: Mr R. Tracey QC

Solicitor for the Respondent: Australian Government Solicitor (Vic)

Date of Hearing: 27 October 1999

Date of Judgment: 28 February 2000

Edited Reasons for Judgment published and further orders made: 6 March 2000

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