Dge22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 183
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 183
File number: PEG 193 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 1 March 2024 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision affirming decision not to grant applicants protection visas – whether Tribunal failed to consider material evidence provided by applicants – whether conduct at Tribunal hearing gives rise to actual or apprehended bias – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 36, 424A, 476, 477
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBYR v Minister for Immigration and Citizenship (2007) ALJR 1190; [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission: 23 November 2023 Date of hearing: 12 October 2023 Place: Perth Applicants: The first and second applicants appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 193 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGE22
First Applicant
DGF22
Second Applicant
DGG22, BY HER LITIGATION GUARDIAN, DGF22
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicants are citizens of China who applied for protection visas. A delegate of the Minister refused to grant the applicants protection visas and the delegate’s decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 29 August 2022. The applicants seek judicial review of the Tribunal decision, invoking the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicants assert that the Tribunal made a jurisdictional error because:
(a)the Tribunal did not consider certain documents provided by the applicants; and
(b)the Tribunal member was biased.
For the reasons explained below, the applicants have not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND DECISION
The first applicant entered Australia as the holder of a student visa in May 2013.
On 28 June 2017 the applicants made an application for protection visas. The first applicant set out her claims for protection in a statement that accompanied her protection visa application. The second applicant is the husband of the first applicant and was included in the application as a member of the same family unit. The third applicant is the child of the first and second applicants who was born after the visa application was made. She was subsequently included in the visa application as a member of the same family unit.
On 23 September 2020 a delegate of the Minister refused to grant the applicants protection visas. On 30 September 2020 the applicants made an application to the Tribunal for merits review of the delegate’s decision.
The Tribunal convened hearings on 20 June 2022 and 1 August 2022 at which the first and second applicants gave evidence and presented arguments.
On 29 August 2022 the Tribunal affirmed the delegate’s decision.
SUMMARY OF TRIBUNAL DECISION
The first applicant claimed that she would face harm in China due to a land dispute in her home town where local authorities wanted to compulsorily acquire land belonging to her parents and other local landowners for development purposes. The Tribunal did not accept that the first applicant would face harm on this basis. While the Tribunal accepted that the first applicant’s father was the owner of a parcel of agricultural land, it considered that the documentary evidence provided in support of the first applicant’s claim did not demonstrate that there was a land dispute in relation to this land.
Based on contradictions and inconsistencies in the first applicant’s evidence over time about where she was living and working at various times when she was in China, where she was physically located when a notice of land acquisition was first given to her family and how compensation was offered by the local authorities to her family for the disputed land, the Tribunal found that the first applicant was not a witness of truth in relation to these matters. The Tribunal rejected the first applicant’s claim to have been injured as a result of a land dispute in 2012 and did not accept medical evidence that she presented based on the prevalence of fraudulent documents in China and the failure to claim that she had been injured when originally presenting her claims for protection. The Tribunal found that the first applicant was never involved in any land dispute with local authorities in her home town as claimed and found that the alleged land dispute never occurred. The Tribunal was not satisfied that there was a real chance the first applicant would face any harm from the local governor and local authorities because of any alleged land dispute.
The Tribunal accepted that the first and second applicants may have lost their household registration and would need to reapply, and would also need to apply to register the third applicant, but did not accept that the local governor and local authorities would deny household registration to the first applicant or her family in any way.
Having considered the first applicant’s claims individually and cumulatively, the Tribunal was not satisfied that:
(a)the first applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and therefore found that she did not meet the refugee criterion in s 36(2)(a) of the Migration Act;
(b)there were substantial grounds for believing that there was a real risk the first applicant would suffer significant harm if she were to return to China, and therefore found that she did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.
The Tribunal did not accept that the second applicant had a well-founded fear of persecution or would face a real risk of significant harm as a result of his wife’s claimed land dispute or because his wife’s alleged problems would prevent the family from obtaining household registration.
The Tribunal was not satisfied that the third applicant would not be able to obtain registration of her birth or household registration if returned to China and was not satisfied that the third applicant would face harm on the basis that she would be unable to adjust to life in China because she has been born and raised in Australia.
The Tribunal therefore found that none of the applicants met the requirements for a protection visa as set out in s 36 of the Migration Act.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 29 September 2022 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following sole ground:
Both the Dept of Home Affairs and AAT did not truly consider my (applicant)’s documents and the AAT member presented a biased attitude in the Hearing.
The application was accompanied by an affidavit deposed by the first applicant, which annexes a copy of the Tribunal decision. In this affidavit, the first applicant elaborated on the ground of application, saying:
1.Based on the notification and Decision Record issued by AAT on 29/8/2022, it can be seen that AAT has failed to truefully investigate the facts and ignore those essential supporting documents….
2. The purpose of this appeal at FCC is seek a natural justice for me.
The only other evidence before the Court is the court book filed on behalf of the Minister on 5 December 2022.
The only relief sought by the applicants in their written application was a writ of certiorari for the Tribunal’s decision to be quashed. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution, which does not extend to matters where only a writ of certiorari is sought. At the hearing, I made an order to allow the applicants to orally amend their application to seek a writ of mandamus. The Minister did not object to such an order being made. I am satisfied that, with the amendment made in Court, the Court now has jurisdiction to hear and determine the application.
Despite having an opportunity to do so by way of an Order made by a Registrar of this Court on 25 November 2022, the applicants did not file any amended application, further evidence or written submissions ahead of the hearing. The Minister filed written submissions prior to the hearing.
At the hearing I heard submissions from both parties. In circumstances where the applicants’ ground does not contain sufficient particulars to be meaningful, I explained to the applicants the need to provide further detail about why they say the Tribunal decision is affected by bias and the documents they submitted that they consider the Tribunal did not properly consider. I stood the matter down briefly to give the applicants an opportunity to consider their responses and when the matter resumed the applicants made submissions identifying why they say the Tribunal decision is affected by bias and identifying, with reference to the court book, the documents that they believe the Tribunal did not consider. Those submissions are addressed below. I also made orders giving the applicants a further opportunity to file evidence and submissions in relation to their allegation of bias against the Tribunal. The first applicant deposed an affidavit that annexed a transcript of the Tribunal hearing convened on 1 August 2022, but the applicants did not file any submissions. The Minister filed submissions addressing the transcript in the context of the oral submissions made by the first applicant at the hearing.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of a court in a judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
IS THE TRIBUNAL DECISION AFFECTED BY JURISDICTIONAL ERROR?
The ground raised by the applicants gives rise to the following two issues, which I consider in turn:
(a)whether the Tribunal failed to consider material evidence submitted by the applicants; and
(b)whether the Tribunal decision is affected by actual or apprehended bias based on the manner in which the hearing was conducted.
Did the Tribunal fail to consider all evidence submitted by the applicants?
The first applicant, in her submissions to the Court, submitted that the Tribunal did not consider the following documents:
(a)medical documents regarding her father’s medical treatment in 2014, a copy of which appears in Chinese at pages 320-321 of the court book, and further medical documents that appear in both Chinese and English from pages 340-345;
(b)a photograph of land which appears at page 346 of the court book; and
(c)a document in Chinese and an English translation headed ‘Permit for Development and Use of Collective Land’ which appear at pages 359-368 of the court book.
When I put to the first applicant that the Tribunal appeared to have considered at least some of these documents in its decision and questioned why she said the Tribunal did not have regard to them or did not properly consider them, the first applicant responded that when the Tribunal member asked questions, he questioned the truthfulness of the material.
The Tribunal in its reasons identified the documents that the applicants had provided to it. The Tribunal identified that there were eight documents attached to a submission provided by the applicants’ representative on 20 June 2022 (see [56] and [57] of the Tribunal’s reasons). The documents that the Tribunal identified as being attached to that submission included:
•A 6-page booklet with a red cover written in Chinese characters and described by the representative as being a ‘booklet named the “Permit of the Right to use a Collective Land” outlining details such as the owner’s name, land size, location boundary etc’;
•A picture of a field with trees, shrubs and water described by the representative as being a picture of the farmland in dispute which remained deserted at the time of taking. This picture appears similar or identical to photographs previously provided in support of the applicants’ claims;
•A hand-written document in Chinese characters with a red stamp affixed to it and described by the representative as an official letter from the Village Administrative Committee certifying ownership of the disputed land owned by the first named applicant’s father;
…
•A document containing typed Chinese characters and described by the representative as being a CT scan report on the brain of the first named applicant’s father; and
•A document containing typed Chinese characters and a graph, which was described by the representative as being a blood test report on the first named applicant’s father demonstrating his health conditions.
The Tribunal expressly indicated at [58] of its reasons that it had read and considered the submissions and supporting documents before making a decision.
The Tribunal also identified that the applicants’ representative provided a further submission to the Tribunal on 29 June 2022 and submitted a number of documents together with the submission (see [117] and [125] of the Tribunal’s reasons). The documents identified by the Tribunal as being provided with the submission included:
•A scanned copy of a document with attached translation stating it was a “Permit for Development and Use of Collective Land” … dated 1990
•A previously provided photograph claimed to be the family’s farmland that was in dispute (previously provided)
•A scanned copy of the previously provided letter from the local village committee testifying to the ownership of the land, together with a translation
…
•A scanned copy of a document, together with an English translation indicating that it was a CT Scan Diagnostic Report from … Hospital conducted on [the first applicant’s father] on 25 August 2014
•A scanned copy of a document, together with an English translation indicating that it was a “Haemorheology Test Report” from … Hospital conducted on [the first applicant’s father] on 25 August 2014.
Based on my review of the court book, I am satisfied that the Tribunal acknowledged in its reasons all of the documents identified by the applicants at the hearing before the Court as being documents that the Tribunal failed to consider. Of course, the mere fact that documents are listed as part of the evidence before the Tribunal does not of itself show that the Tribunal considered the documents. It is therefore necessary to have further regard to the Tribunal’s reasons.
The Tribunal considered the documents relating to the ownership of land by the first applicant’s family and accepted, based on these documents, that the first applicant’s father owned a parcel of land. However, the Tribunal did not consider that these documents established that there was any dispute in relation to the land. This can be seen at [146] of the Tribunal’s reasons, where the Tribunal said:
On the basis of the land certificates, a verification document from the local village committee and photographs submitted over time by the first named applicant to the Department and the Tribunal, the Tribunal accepts that the first named applicant’s father is the owner of a parcel of agricultural land… In some documents and statements submitted to the Tribunal over time, the name of the village is spelt slightly differently but the Tribunal accepts that the documents and photographs refer to one landholding in one village in … Province and for consistency the Tribunal has used the spelling of the village that was provided by the first named applicant in the original claims she made to the Department. However, these documents make no reference to any dispute about this land whatsoever and therefore the Tribunal has placed no weight on these documents when assessing the existence of the claimed land dispute or the first named applicant’s role in this claimed dispute.
The Tribunal considered the documents in relation to the first applicant’s father’s medical condition at [167] of its reasons, where it said:
In making these findings the Tribunal has considered the medical documents provided by the first named applicant in relation to her father. The Tribunal accepts that the first named applicant’s father suffers from a number of ailments, conditions and illnesses that are outlined in these documents. However, these documents do not outline how these ailments, conditions and illnesses were caused or when they were caused. Therefore, the Tribunal has placed no weight on these documents when assessing the first named applicant’s claims about the alleged land dispute in her hometown.
I am satisfied that the Tribunal clearly considered the evidence advanced by the applicants, including that identified by the first applicant in her submissions to the Court. It can be seen from the above passages that, after considering the documents, the Tribunal attributed no weight to the documents insofar as they were provided to support the first applicant’s claims that she would be at risk of harm because of a land dispute. This assessment of the evidence and the attribution of weight to the evidence is a matter for the Tribunal as part of its fact-finding function: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ); Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [95] (Emmett, Weinberg and Lander JJ)..
The applicants’ real complaint appears to be that the Tribunal did not believe that the documents supported the first applicant’s claims in relation to the land dispute. The Tribunal was not required to uncritically accept the claims advanced by the applicants or the evidence they provided in support of their claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 451 (Beaumont J); DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [26] (Derrington J). The Tribunal’s reasons disclose a logical and intelligible justification for the attribution of weight to the evidentiary documents provided by the applicants.
Contrary to the applicants’ submissions to the Court, the Tribunal did not question the truthfulness of the documents identified by the applicant at the hearing before the Court. Rather, the Tribunal found that the documents did not support the first applicant’s claims in relation to the land dispute. It is, however, apparent from the Tribunal’s reasons that the Tribunal did question the authenticity of other documents submitted by the applicants, including medical documents relating to the first applicant. In this regard, the Tribunal considered country information about the prevalence of fraudulent documents and then continued at [164] and [165]:
164.The Tribunal has also considered the country information referred to above which was discussed with the first named applicant at the second Tribunal hearing, that clearly states that many documents such as the medical certificate presented by the first named applicant are easy to create in China and that in general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere else in the world.
165.Based on the fact that the first named applicant did not make any mention of sustaining injuries or requiring medical treatment in November 2012 in her statement of 27 June 2017 or at the first Tribunal hearing on 22 June 2022, and given the country information referred to above highlighting the prevalence of fraudulent documents in China, the Tribunal does not accept that the medical certificate dated 20 November 2012 is a genuine document and therefore the Tribunal finds that the medical certificate dated 20 November 2012 submitted to both the Department and the Tribunal by the first named applicant is fraudulent.
Again, the Tribunal was not required to uncritically accept the documents provided by the first applicant in support of her claims and the Tribunal has provided an intelligible and logical explanation as to why it found the medical certificate provided by the first applicant in relation to injuries that she allegedly sustained in 2012 was fraudulent. The mere disagreement of the applicants with the Tribunal’s findings is not sufficient to establish jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] (Gleeson CJ and McHugh J).
The applicants’ allegation that the Tribunal did not consider the evidentiary documents provided by them does not establish jurisdictional error in the Tribunal decision.
Is the Tribunal decision affected by bias?
In her oral submissions at the hearing, the first applicant submitted that:
(a)she attended two hearings before the Tribunal;
(b)the first hearing was all right and the member mainly wanted to find out information from her, but after the hearing the member turned off the voice recording and said to her agent, ‘Was that true that – that what she said? If it’s true I could grant her straight away’;
(c)at the second hearing the member’s facial expression was ‘kind of unfriendly’ and the member asked a question that the first applicant did not quite understand, so she asked questions about it, and the member just said ‘You just answer me “yes” or “no”. You don’t need to say so much’; and
(d)another thing she remembers vividly is that the member just questioned the submission she provided and said it had problems and the member said, ‘In China, there are lots of scammers, a lot of people fabricating materials’, to which the first applicant replied that she does not know any scammers and has never had anything to do with them, but the member’s facial expression showed that the member did not believe the first applicant and the member was very unfriendly.
As indicated above, after the hearing the applicants filed an affidavit deposed by the first applicant which annexes a transcript of the Tribunal hearing conducted on 1 August 2022, which was the second hearing convened by the Tribunal. The applicants did not file any submissions and there is nothing before the Court to indicate precisely which parts of the transcript the applicants rely on in support of their allegation that the Tribunal was biased.
I have reviewed the transcript myself to try to identify the applicants’ concerns based on the submissions advanced at the hearing. I have also had regard to those parts of the transcript referred to in the further submissions filed on behalf of the Minister.
It is apparent from the transcript that the purpose of convening the second hearing was so that the Tribunal could invite the first applicant to comment on country information and the possibility that the medical certificate she provided in relation to injuries she claimed to sustain in 2012 was fraudulent. This can be seen from the following comments of the Tribunal member in the course of the second hearing:
The primary issue I have today that I want to discuss with you is the medical certificate you provided to me from the … hospital and that certificate was dated on the 20/10/2012 with the translations
…
Now in a detailed statement that you made to the Dept. dated 27/6/2017, which is provided together with your Protection Visa application, you outlined in considerable detail the events that you claimed had occurred to you in relation to 2012 and early 2013 relating to the dispute over your family’s land…
In this statement you make no mention whatsoever of any injury to your left calf or you have sought medical treatment for any injury sustained in Nov 2012.
…
In the first tribunal hearing that we had, I asked you to outline, in your words, the problems you have suffered in China. And you gave me a lengthy and very detailed response. Through the interpreter, you spoke for a significant amount of time with no interruption and let me finish, but you made no mention whatsoever in that response about any injury that you have sustained to your left calf or you have sought any medical treatment in Nov 2012.
…
Now Country Information from the Department of Foreign Affairs and Trade specifically reported the People’s Republic of China dated Dec 2021. It talked about document fraud in China. In particular, it refers to paragraph 5.44 to the fact that bank statements, Academic transcripts, proof of employment and other documents are much easy to be produced fraudulently than a passport and NIC (National Identity Card) and para 5.45 says in general, fraudulent documents in China are very common and the scale of fraud cannot be matched by anywhere in the world.…
Fraudulent documents and criminals who create them are highly sophisticated. Criminal syndicates may provide a range of documents to asylum seekers as most visa applications are made online, there is further opportunity to dupe the genuine documents that are uploaded into the system…
Given that you did not mention anything about your injury to your left calf or seeking of medical treatment in your application to the Department dated 27/6/2017, and …
Given that you did not make any mention about the injury to your left calf or about seeking any medical treatment you outlined in your own words to the tribunal about the problem you suffered in China, and …
Given the Country Information that I have read it to you suggesting that fraudulent documents of this nature in China are very common, I may find...... I may find.... that you never sought or receive this medical treatment as you claimed in Nov 2012 and that the medical Certificate you provided is fraudulent.
The Tribunal member stressed at the conclusion of the hearing that he had not yet made up his mind and had simply invited the applicants to comment.
After the first applicant responded to the information put to her by the Tribunal, the Tribunal invited the first applicant to tell the Tribunal anything else she wanted to. The first applicant wished to provide details about her timeline schedule from June 2012 to May 2013. The following exchange may be relevant to the applicants’ assertions that the Tribunal member told her to answer ‘yes or no’ (emphasis added):
[First applicant]: Can I provide more details on my time line schedule from Jun 2012 to May 2013 in my last tribunal hearing?
[Tribunal member]: I am confused of what you are asking me.
… [The applicants’ representative] provided me with a detailed list of where your claimed to be living. I have it now and I will look at it.
…
[First applicant]: Can I explain why I did not mention in my last hearing? Because a lot of bad things happened to me.
[Tribunal member]: Just one moment please so that I can make some notes. …
OK you tell me, tell me what you want to tell me.
[First applicant]: The reason I did not mention in my time line schedule clearly is because in 2015, I had a miscarriage due to my body being ruined by those people. Also in that year I hide up and kept away from people, including my parents, due to serious depression. During that time, my mind is not clear and forgetful. …
My brain tends to be illusional and cannot get a correct memory. That explains the reason why I make a mistake in the last hearing. After I became a mother, my mind started to improve and become a bit clearer. But in my brain, I don’t have a good memory in time. That is why my memory was not clear and may make a mistake in my timeline schedule in the last hearing. I hope you could accept my points. …
I want to explain that if I was to be removed to China, my household registration has been cancelled already and the officer who persecuted me has been promoted to a higher position and he could do anything to me and I will be helpless.
[Tribunal member]: I don’t believe any of that. I don’t believe the issue you raised about your household registration has been cancelled. We have talked about it last time. Information is very clear, if somehow your household registration has been cancelled you will get it back. …
I will raise some issues that I had with you. …
The time line you speak of relates to where you are living at various period of time and you later provide to [the applicants’ representative] a detailed explanation about where you claim to be living at various period of time, is that what we are talking about ? is that right?
[First applicant]: Do you mean the time line I supplied in the 2nd hearing?
[Tribunal member]: You have spent the last 10 mins speaking to me talking about the schedule and time line in the last hearing. You raised it, not me. It is your claim, what is it?
And I am asking you whether you are after the time line or schedule that relates to where you lived in China at various point of time and you later provide to [the applicants’ representative] a detailed explanation of where you claim to be living at different points in time. Is it what you are after? …
Yes, I just want yes or no answer. I am very confused. Lets get it right. Is it what we are talking about and you are confused about it when you filled out the form in 2017.
[First applicant]: I just want to let you know and I was trying to explain to you why I didn’t make it clear while I am providing materials in 2017 and it was because I have a miscarriage in 2015 and my brain was not very clear. I want to let you know that I did not submit the information to the department.
[Tribunal member]: I understand what you are telling me, I understand it.
Having identified the relevant portions of the transcript, I now turn to whether the applicants have established that the Tribunal decision is affected by bias.
The Tribunal decision will be affected by actual bias if the Tribunal member had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [72].
The Tribunal decision will be affected by apprehended bias if a fair-minded, well-informed lay person might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the conduct of the review: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17] (Kiefel CJ and Gageler J) and [56] (Nettle and Gordon JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [37] (Kiefel CJ and Gageler J); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Any assertion of bias must be distinctly made and clearly proved: Jia Legeng at [69].
With these principles in mind I turn to the matters that the applicants point to in support of their allegation of bias.
The first way in which the applicants assert bias is that after the first hearing the Tribunal member ‘turned off the voice recording and the member talked to [the applicants’] agent, said – what she said, “Was that true that – that what she said? If it’s true, I could grant her straightaway”.’ The applicants have not adduced any evidence to confirm that such comments were made by the Tribunal member.
However, even if I were to accept, based on the applicants’ submissions, that such comments were made, I would not find that they establish actual or apprehended bias. At best, the comments might be interpreted as a suggestion that if the Tribunal accepts the first applicant’s evidence as truthful, that might lead to the grant of a protection visa. This does not demonstrate pre-judgment on the part of the Tribunal and rather suggests that the Tribunal member was open to the possibility that the first applicant may meet the criteria for a protection visa. That the Tribunal, after considering the applicants’ claims and evidence, made adverse findings does not give rise to any inference as to the state of mind of the Tribunal member while the matter was under consideration and does not give rise to an inference of pre-judgment: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (Von Doussa J). There is also nothing in the Tribunal member’s alleged comments that might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the determinative issues.
The second way in which the applicants assert that the Tribunal was biased was because the Tribunal member’s facial expressions during the second hearing was ‘kind of unfriendly’ and the facial expressions showed that the Tribunal member did not trust or believe the first applicant, and displayed an unfriendly attitude. Again, there is no evidence before the Court in relation to the facial expressions of the Tribunal member. The first applicant’s submission to the Court that the Tribunal member’s facial expressions were ‘kind of unfriendly’ is an expression of the first applicant’s subjective perception and does not contain any detail that might describe why the first applicant perceived the Tribunal member’s facial expressions to be unfriendly.
I cannot find any pre-judgment on the part of the Tribunal member based on the vague assertions that the member’s facial expressions were unfriendly and nor can I find based on those vague assertions that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an open mind to the review.
To the extent that this complaint relates to the Tribunal not trusting or believing the first applicant, it does not establish bias. It was open to the Tribunal to test the applicants’ evidence at the hearing and the Tribunal was not required to uncritically accept everything that the applicants said: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [29]-[31] (Gleeson CJ, Gaudron and Gummow JJ); Randhawa at 451 (Beaumont J). It is evident from a review of the transcript that the Tribunal did express doubt about some aspects of the first applicant’s evidence and the Tribunal afforded the first applicant an opportunity to address its concerns. This does not give rise to actual or apprehended bias, and the Tribunal member reiterated at the end of the second hearing that he had ‘not made up [his] mind and [he] want[ed] to make sure [the applicants] have that opportunity to know that [he was] not implying anything and [he was] not suggesting anything’.
The third way in which the applicants assert that the Tribunal was biased was that, when the first applicant tried to clarify questions, the Tribunal member said, ‘You just answer me “yes” or “no”. You don’t need to say so much’.
The context in which a comment to this effect was made can be seen in the extract of the transcript set out at [44] above. It is clear that there was some confusion as to precisely what ‘timeline’ the first applicant was seeking to address and the Tribunal member was trying to confirm whether the timeline the applicant was addressing was the list of past addresses that was in front of the Tribunal member. The Tribunal member overall gave the first applicant an opportunity to speak freely and address her claims in her own words. The request to answer ‘yes or no’ in relation to one specific issue does not demonstrate pre-judgment and I do not accept that it might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an open and impartial mind to its task.
The fourth way in which the applicants assert that the Tribunal was biased was that the Tribunal questioned the document provided by the applicants based on information that there were a lot of scammers and fabrications in China, and that the Tribunal did not believe the first applicant when she said she had nothing to do with scammers.
Again, the context in which such comments were made can be clearly seen from the transcript of the second Tribunal hearing, and in particular from the extract of the transcript set out at [42] above. It is apparent from the transcript that the Tribunal gave the applicants country information and gave the first applicant an opportunity to comment on country information that may undermine her claims. This is an example of the Tribunal affording the applicants procedural fairness beyond what was required by s 424A of the Migration Act, which did not require the Tribunal to invite the applicants to comment on country information or for the Tribunal to disclose its subjective thought processes: see s 424A(3)(a) of the Migration Act and SZBYR v Minister for Immigration and Citizenship (2007) ALJR 1190; [2007] HCA 26 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
There is nothing in the Tribunal’s actions of inviting the applicants to attend a further hearing and inviting the first applicant and her agent to comment on the country information in relation to the presence of scammers and fraudulent documents in China that indicates pre-judgment on the part of the Tribunal or which might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an open and impartial mind to the review. The Tribunal’s responses to the first applicant did not disclose a mind that was not open to persuasion.
The applicants have not established that the Tribunal decision is affected by bias.
CONCLUSION
The applicants have not established that the Tribunal decision is affected by jurisdictional error. It follows that the judicial review application to this Court must be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 March 2024
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