MZAFS and Ors v Minister For Immigration and Anor (No.2)
[2016] FCCA 1872
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAFS & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 1872 |
| Catchwords: MIGRATION – Review of a decision of the Second Respondent – application for Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 425(1) |
| AZACK v Minister for Immigration (2014) 144 ALD 72 MZAFS v Minister for Immigration [2015] FCCA 2881 |
| First Applicant: | MZAFS |
| Second Applicant: | MZAFT |
| Third Applicant: | MZAFU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1138 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 14 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| The First Applicant: | MZAFS in Person |
| Counsel for the First Respondent: | Mr Hill |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1138 of 2014
| MZAFS |
First Applicant
| MZAFT |
Second Applicant
| MZAFU |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 11 June 2014 the Applicants sought judicial review of a decision of the Second Respondent (then the Refugee Review Tribunal and now the Administrative Appeals Tribunal) (‘the Tribunal’) dated 16 May 2014 which affirmed a decision of a delegate of the First Respondent not to grant the Applicants’ Protection (Class XA) visas (‘the visas’). The Second and Third Applicants applied for visas as members of the First Applicant’s family. Hereafter I shall refer to the First Applicant as the Applicant.
On 6 November 2015, His Honour Judge Burchardt dismissed the judicial review application (as described above) of the Applicant.
On 10 February 2016 Justice Edelman of the Federal Court of Australia sitting on appeal from the decision of Judge Burchardt of 6 November 2015 ordered as follows:-
“1. The appeal be allowed.
2. The orders made by the primary Judge on 6 November 2015, including as to costs, be set aside.
3. The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the Application filed in that Court on 11 June 2014.
4. The first respondent pay the appellant’s costs of these proceedings as agreed or assessed.”
Edelman J provided Reasons for Judgment and noted that the orders made by him were by consent. His Honour said in paragraphs 3 to 6 of those Reasons for Judgment the following:-
“3. The hearing before the Federal Circuit Court took place on 25 August 2015. At the hearing, counsel for the Minister told the Court that he was content to rely on his written submissions. But, in circumstances where some of the grounds of appeal were concerned with details about the manner of the hearing, including allegations of ostensible bias, the Federal Circuit Court prudently ordered a transcript of the Tribunal hearing. The parties were given 21 days from the receipt of the transcript to present any written submissions.
4. On 9 September 2015, the Minister filed an affidavit attaching a transcript of the three hearings before the Tribunal.
5. On 28 September 2015, the appellants filed an affidavit containing a “supplementary statement” by the first appellant. The English translation of that statement is three tightly spaced pages which are, in effect, submissions. The submissions focus in detail upon the conduct of the hearing by the Tribunal.
6. On 6 November 2015, the Federal Circuit Court delivered its decision. The Judge said in his decision, at [14], that “[n]o written submissions, or other communication, have been received from the applicant”. It is clear that although the written submissions from the first appellant were filed they were inadvertently not seen by the Judge.”
Edelman J concluded that although inadvertent, there had been a denial of procedural fairness to the Applicant.
On 4 April 2016 and following remittal of the proceedings to the Court the following orders were made by consent:-
“1. Pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth), the First Applicant is hereby appointed litigation guardian for the Third Applicant.
2. On or before 5 April 2016 the Applicants file and serve:
a. any amended application including any additional grounds of review with complete particulars of each ground; and
b. any affidavits.
3. On or before 11 April 2016 the First Respondent file and serve any affidavits.
4. Other than the Court Book of relevant documents, all evidence relied upon by the parties must be presented by way of affidavit.
5. Evidence of the contents of any sound recording be presented as a transcript verified by affidavit.
6. On or before 5 April 2016 the Applicant file and serve written submissions and list of authorities.
7. On or before 11 April 2016 the First Respondent file and serve written submissions and list of authorities.
8. The matter be listed for hearing on 14 April 2016 at 11:30 am before Judge Hartnett.
9. Costs be reserved.”
On 14 April 2016 the application filed on 11 June 2014, as remitted, was proceeded with in the Court. Judgment was reserved. In these Reasons for Judgment I set out my Reasons as to the making of orders for the dismissal of the Applicant’s judicial review application so filed.
Grounds of Application
The “Attachment to Grounds of Application - Orders sought by Applicant” as set out in the Applicant’s application are as follows:-
“1, I don’t think DIBT and RRT’s decision are fair and reasonable as they failed to carefully consider my political opinion against Chinese government which is exclusively described in my claim. My political motion was ignored, especially my actual involvement of the political activities in China.
2, RRT failed to consider and invest the truth of my statement in particular the substantial evidence and documents provided to the tribunal and judge my case simply by general country information which is unreasonably covers my situation.
3, RRT failed to prudently consider the persecution, oppression and social bias upon me and my business I have experienced in origin, and potential risk due to my background, and implication to my family members if we return to origin.
4, RRT failed to consider the statements, explanation, and evidence provided by my family members, in particular my son’s testimony who is currently in his school age in supporting my claim as a whole.
5. RRT unfairly doubt about the truthfulness of my claim, generating no good accounts for the investigating the facts I have given. Tribunal’s subjects my persecution of out Conventional grounds is unfair and unreasonable as I was, and is the person who meets the criteria for protection according to the Convention.”
“The Grounds of the Application” which followed were:-
“1, I am a Chinese citizen and have strong political opinion against Chinese government. As a member of Peasants and Worker’s Party of China, I have been actively involved in political activities and political motion was targeted by police, leading the fact that I was eventually persecuted and threatened by Chinese authority, and my business operation was harassed, end up being sealed off and collapsed due to my political opinion.
2. My family members have been adversely affected due to my record with police.
3. I spare no effort to provide as much as I can the evidence from origin to support my claim. However it always utmost difficult for me who currently seek protection overseas manage to provide the detailed documents in writing from parties concerned from origin.”
On looking to the above there is no articulation and/or particularisation of any alleged jurisdictional error by the Tribunal.
The Applicant relied upon his application filed on 11 June 2014. The Applicant did not file any amended application as provided for in orders made by consent by Registrar Caporale on 3 September 2014. The Applicant also relied upon an affidavit of the Applicant sworn on 28 May 2014 which stated “WE NEED RELIGION FREEDOM AND WE FEAR TO GO BACK TO CHINA” and otherwise annexed the Tribunal’s Statement of Decision and Reasons, dated 16 May 2014 (‘the Decision Record’). A second affidavit of the Applicant affirmed on 28 September 2015 was further relied upon. The second affidavit filed by the Applicant contains a “Supplementary Statement” further setting out what the Applicant claims are his grounds for judicial review. That document is in effect submissions going to the conduct of the hearing by the Tribunal as noted in the following paragraph.
The First Respondent accurately summarised the arguments put forward by the Applicant, in his “Supplementary Statement” document described above, in the First Respondent’s contentions of fact and law filed on 11 April 2016 at paragraph 21, in the following terms:-
“21.1 The First Applicant contends that the Tribunal did not ask the First Applicant about his political views.
21.2 The First Applicant contends that the Tribunal member’s tone was discriminatory and prejudiced, and she was indifferent and heartless.
21.3 The First Applicant contends that the Tribunal “pretend[ed she] didn’t see” the First Applicant’s evidence from China such as the photos when the police searched and sealed his company, and “the reason[s] [the Tribunal] refuse[d to] conside[r] [this] evidence were so feeble”.
21.4 The First Applicant contends that, at the second Tribunal hearing, the Tribunal should have listened to the Applicants’ evidence “face to face”, but instead the member only requested a written explanation. At the third hearing, the Tribunal did not give the Second Applicant an opportunity to ask questions and explain.
21.5 The First Applicant contends that the Tribunal did not give him an opportunity to provide evidence. He told the Tribunal member that it would be possible to find evidence of persecution of the First Applicant by the Chinese government from an internet search of the official websites of the court and government institutions. The Tribunal told the First Applicant that “they didn’t find any”. The First Applicant says the Tribunal should have “ask[ed] me again to provide them those strong and direct evidences”.”
The First Respondent argued that the Tribunal decision dated 16 May 2014 is not affected by jurisdictional error and the arguments of the Applicant are without foundation. In summary the First Respondent contended that the arguments raised by the Applicant are an impermissible attack on the merits of the Tribunal’s decision. Further that the arguments raised in the Applicant’s “Supplementary Statement” challenge the Tribunal’s decision-making process without any substantiation, and indeed contrary to what is apparent from the transcript of the Tribunal hearings.
The First Respondent relied upon a response filed on 25 June 2014, an affidavit of Mr Marcus Priest, Solicitor, affirmed on 9 September 2015, which annexed a copy of the transcript of the Tribunal hearings on 22 October 2013, 27 November 2013 and 28 March 2014, and the First Respondent’s contentions of fact and law filed on 11 April 2016. In addition, the Court had in evidence before it the contents of the Court Book filed by the Solicitors for the First Respondent on 3 November 2014.
The Applicant was assisted by an interpreter in the Mandarin and English languages at the hearing of the proceedings on 14 April 2016. Prior to the commencement of the final hearing the Applicant had interpreted to him the First Respondent’s submissions filed 11 April 2016.
History
The Applicant is a Chinese national born in Jiaozuo in Henan in China in 1972. The Second Applicant is a Chinese national and wife of the Applicant. She and the Applicant married on 10 October 1997 in China. The Third Applicant is the Applicant and Second Applicant’s son. The Applicants applied for Tourist visas at the Australian Embassy in Shanghai, China on 21 June 2011. The Applicant and Second Applicant were granted Subclass 676 (Tourist) visas on 30 June 2011. Their son, the Third Applicant, was granted a Subclass 676 (Tourist) visa on 5 July 2011. All of the Tourist visas were valid for twelve months and each permitted a three-month stay in Australia. All of the Applicants first entered Australia on 10 July 2011. Since first arriving in Australia, the Applicants have had the following movement history:-
6 October 2011 Departed Australia for Fiji
13 October 2011 Arrived in Australia
12 January 2012 Departed Australia for Indonesia
16 January 2012 Arrived in Australia
13 April 2012 Departed Australia for Fiji
17 April 2012 Arrived in Australia
The Applicants lodged a valid protection visa application on 16 July 2012.
On 8 November 2012, a delegate of the First Respondent refused to grant the Applicants the visas. On 5 December 2012, the Applicant applied to the Tribunal for review of the delegate’s decision. Three separate hearings were held by the Tribunal on 22 October 2013, 27 November 2013 and 20 March 2014. On 16 May 2014, the Tribunal affirmed the decision not to grant the Applicants’ visas. The Applicant sought judicial review.
At the hearing on 25 August 2015, Judge Burchardt directed the Minister to file a transcript of the hearings before the Tribunal as soon as practicable, and gave the parties 21 days to present further written submissions.[1] His Honour did so because of the nature of the oral submissions made by the Applicant at that hearing. The Minister filed an affidavit of Mr Marcus Priest affirmed on 9 September 2015, which annexed true copies of the transcripts of the audio recordings on each of the three hearing days (22 October 2013, 27 November 2013 and 28 March 2014) before the Tribunal. On 28 September 2015, the Applicant filed an affidavit attaching a “Supplementary Statement” (effectively further submissions) which as referred to earlier in these reasons was not sighted by Judge Burchardt.
[1] MZAFS v Minister for Immigration [2015] FCCA 2881 at [12].
The Applicant’s Claims
The Applicant claimed to fear harm because of his political opinion/imputed political opinion. He claimed further that he left his country because he pursued democracy and freedom in China but the ruling government tortured him and he did not have any human rights in China. Implicit in the Applicant’s claims, as acknowledged by the Tribunal, was that the Applicant cannot get protection in his country from the harm he fears and cannot relocate to avoid harm there. The basis of those claims are set out in a translated statement provided with the visa application together with a later statement made by the Applicant to the delegate of the Minister which corrected some of the dates provided by the Applicant in his initial statement of 16 July 2012. The claims of the Applicant are relevantly summarised by the First Respondent in the First Respondent’s contentions of fact and law. They are as follows:-
“6.1. In June 1989, the First Applicant went to Beijing for the purpose of attending the student demonstrations in Tiananmen Square. He was kicked by a soldier, and he and his friends were interrogated for more than 2 hours.
6.2. In May 2008, the First Applicant met Xiadong Hou, the Secretary of the Zhongzhan Branch of the Chinese Peasants’ and Workers Democratic Party, and they became friends. The First Applicant became a probationary member of the Chinese Peasants’ and Workers Democratic Party.
6.3. In June 2010, the First Applicant downloaded articles and videos from the internet and burned the content onto compact discs. He and others handed out a first batch of discs in June and July 2010, and handed out much of a second batch of discs between January 2011 and March 2011.
6.4. On 27 May 2011, the First Applicant was detained by police for questioning. He was struck by police, and kept for questioning until 29 May. The Second Applicant was also interrogated.
6.5. On 30 May 2011, a bank official told the First Applicant that people from the Public Security Bureau had been investigating the First Applicant’s accounts and funds.
6.6. On 3 June 2011, the First Applicant gave a travel agent the documents for the Applicants to travel to Australia.
6.7. Around the end of July 2011, the First Applicant’s brother told him that the policemen went to find him on 18 July.”
The Tribunal Hearing
The Applicant appeared before the Tribunal on 22 October 2013 to give evidence and present arguments. The Applicant produced his passport issued in his country in Henan in May 2011, various photographs (eleven) and a copy of a document in his language. Copies of these documents/photographs are on the Tribunal file. The Applicants appeared before the Tribunal on 27 November 2013 but as the Applicant felt there were difficulties with the interpreter the hearing was adjourned on that date. The Applicants appeared again before the Tribunal by video link on 20 March 2014 after being unable to attend a face to face interview in Sydney arranged for 5 February 2014. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. Copies of relevant pages of the Applicants’ passports produced to the Tribunal were placed on the Tribunal file.
The Tribunal spoke with the Applicant about his background and his claims and the document and photographs produced by him in support of his claims. The Applicant said that the copy of the document in his language related to his joining the Chinese Peasants’ and Workers’ Democratic Party which he joined in December 2008; the interpreter confirmed that the document was dated 9 December 2008. The Applicant said that the photographs showed the activities of the Party and its leader, the door to his office and the sign on his office. He said that the photographs were provided to the Tribunal as evidence, including evidence that police closed down his factory.
The Tribunal’s Findings
The Tribunal accepted that the Applicants were citizens of China. The Tribunal said as to its task:-
“29. The Tribunal accepts that there is independent country information including the country information referred to by the delegate, that supports in a general way the applicant’s claims, namely that there is sometimes persecution by Chinese authorities of those who oppose the Chinese government/ the Chinese Communist Party in China. The Tribunal also accepts that bribery and corruption is very common in China, including in government departments, as the applicant claims. Clearly however, in relation to subsection 36(2)(a) the Tribunal must determine whether the applicant before it has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country and/or, for the purpose of subsection 36(2)(aa) (‘the complementary protection criterion’) the Tribunal must determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant in question being removed from Australia to a receiving country, in this case China, there is a real risk that he will suffer significant harm in that country.”
The Tribunal did not accept as true that the Applicant feared harm in his country from those he claims to fear for the reasons he claimed. The Tribunal did not accept that the Applicant left his country and cannot return there for the reasons that he claimed. The Tribunal found that the Applicant had not given truthful evidence to the Tribunal about his claims. The Tribunal did not accept that there was a real risk that the Applicant will face serious or significant harm in his country, as claimed, for the reasons that the Applicant claimed if he returned to China.
The Tribunal did not accept that the Applicant was a member of the Chinese Peasants’ and Workers’ Democratic Party, or that he was involved in compiling and distributing discs containing pro-democratic materials. The Applicant could tell the Tribunal very little about what was on the discs. The Tribunal considered that, if the Applicant’s claims were true, he would know more about what was on the discs, given his claimed motivation for being involved in those activities.
The Tribunal also considered that it was not consistent with the Applicant’s claims that, just before he left China, he was working in China in his two companies, living with his family at his usual address, and left China using his passport and a visa in his name. The Tribunal also considered that it was not consistent with the Applicant’s claims that he did not apply for a protection visa until July 2012, after first arriving in Australia in July 2011. The Tribunal considered that the Applicant did not give a reasonable or plausible explanation for why he did not apply for protection until about one year after he first arrived in Australia.
Given the Tribunal’s concerns with the Applicant’s credibility, the Tribunal also did not accept that the Applicant was interrogated by authorities and ill-treated around the time of the Tiananmen Square demonstrations. The Tribunal also did not accept that the representative engaged by the Applicants knew the chief of the Public Security Bureau, and that person had stayed with the representative in Melbourne. The Tribunal considered that these claims were embellishments by the Applicant to give him a better chance to get a visa to stay in Australia.
The Tribunal stated that the Second Applicant (the wife) made no claims on her own behalf before the Tribunal, other than saying that “they” were looking for “us” in China and asking, rhetorically, what would happen if she and the Applicant were arrested on their return to China.
The Tribunal also stated that the Third Applicant (the son) made no claims on his own behalf, other than claiming that he would be behind with his studies if he returned to China. The Tribunal did not accept that the Third Applicant was unable to give, or was hindered in giving, evidence before the Tribunal because of his state of mind.
The Tribunal also considered the document in the Applicant’s language and photographs produced by the Applicant in support of his application. The Tribunal accepted that the document stated what the Applicant claimed but given that the Tribunal did not consider that the Applicant had given truthful evidence of his claims, and given that the Applicant himself acknowledged that corruption and bribery was common in China, the Tribunal did not consider that the document was reliable evidence of the facts in it. Further, given that the Tribunal did not accept that the Applicant was a witness of truth, the Tribunal considered that the photographs did not depict what the Applicant claimed they depict; they were not reliable evidence of the Applicant’s claims.
The Tribunal therefore concluded that there was no plausible evidence that any of the Applicants had suffered persecution in China, or that there was a real chance of any of the Applicants being persecuted in China for any Convention reason. The Tribunal also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to China, there was a real risk of any of the Applicants suffering significant harm for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
Consideration
The Tribunal carefully considered the Applicants’ claims and material before it and made findings of fact open on the evidence before the Tribunal. The Tribunal found that the Applicant was not credible, and therefore rejected his claims. The Tribunal’s decision is both logical and reasonable. As submitted by Counsel for the First Respondent there is no substance to the argument that the Tribunal failed to consider the material relied on by the Applicants. Rather, the Tribunal considered that material and rejected it. It is open to the Tribunal to reject apparently corroborative material because of the Tribunal’s adverse findings as to an applicant’s credibility.[2]
[2] See e.g. Minister for Immigration v SZMOK (2009) 257 ALR 427 at [59]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] (McHugh and Gummow JJ).
In relation to country information, the choice and the assessment of the weight of that information are matters for the Tribunal. The Court does not substitute its own view of country information, even if the Court has a different view from that reached by the Tribunal.[3]
[3] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]. See also MZZHM v Minister for Immigration [2014] FCA 553 at [9] (Bromberg J); SZSNR v Minister for Immigration [2013] FCA 1305 at [14] (Nicholas J).
The Applicant was given a full opportunity to give evidence and present arguments with the assistance of an interpreter, and his migration agent and in accordance with s.425(1) of the Act. The Tribunal held three hearings to enable the Applicant to say what he wished to say, and gave the Applicant every opportunity to put his case forward and to respond to those matters put to him by the Tribunal. Towards the end of the first hearing (after over three hours of hearing), the Tribunal member stated “I want the Applicant to have a chance to tell [the Tribunal] everything he wants” and to that end adjourned the further hearing of the proceedings.[4] At the second hearing, the Tribunal member stated that she wanted the Applicant to tell her the things he felt he did not get a chance to tell her at the first hearing.[5] When the Applicant said he had difficulties with the interpreter, the Tribunal member stated she would organise a further hearing because she wanted the Applicants to have the best chance possible.[6] At the third hearing, the final question from the Tribunal member to the Applicant before the Second and Third Applicants gave evidence was whether there was anything further that the Applicant would like to say.[7] After the Second and Third Applicants gave evidence, contrary to the oral submissions of the Applicant at the hearing, the Tribunal heard further evidence from the Applicant. The Tribunal asked again whether there was anything further that the Applicant would like to tell her or give her that day. The Tribunal did not cut short the Second Applicant and sought to hear from the Second and Third Applicants, the Applicant having indicated they would give evidence. The Tribunal heard this evidence, albeit the Second and Third Applicants had not provided a written statement of the evidence they proposed to give as evidence, which had been earlier requested by the Tribunal in accordance with a practice direction of the Tribunal. Prior to that, the Tribunal had asked the Applicant “did your wife and child want to tell me anything in particular today? Do they want to speak to me today?”
[4] Affidavit of Marcus Priest affirmed on 9 September 2015, Annexure A, p.38: transcript of first hearing, 22 October 2013, p 35 (lines 10-11).
[5] Affidavit of Marcus Priest affirmed on 9 September 2015, Annexure A, p.44: transcript of second hearing, 27 November 2013, p 4 (lines 25-26).
[6] Affidavit of Marcus Priest affirmed on 9 September 2015, Annexure A, p.50: transcript of second hearing, 27 November 2013, p 10 (lines 39-41).
[7] Affidavit of Marcus Priest affirmed on 9 September 2015, Annexure A, p.68: transcript of third hearing, 28 March 2014, p 12 (lines 19-20).
There was no obligation on the Tribunal to go and find evidence that supported the Applicant’s case.[8] At the first hearing, the Applicant asked the Tribunal to examine the factory in China to determine that it had been closed. The Tribunal stated (correctly) that this was not possible. The Applicant also asked the Tribunal to put the Applicants’ names into Google to find information from Chinese websites showing that the Applicant’s factory had been shut down. He claimed “you can see a lot of information there and actually our names are on the official sites,… they are checking us, they are wanting us.” The Tribunal asked if the Applicant could print the relevant information from the internet and send it to the Tribunal, and then asked to Applicant “what do you say is on the official website about you?”
[8] See Minister for Immigration v SZIAI (2009) 259 ALR 429 at [24]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is only in “rare and expceptional” cases that there is a duty to inquire: Minister for Immigration v Le (2007) 164 FCR 151 at [60] (Kenny J); MZZGB v Minister for Immigration [2014] FCA 1052 at [62]-[63] (White J).
The Applicants have not put forward any material that would go towards substantiating their assertion that the Tribunal member’s tone was “discriminatory”, “prejudiced”, “heartless” or “indifferent”.
The test of apprehended bias is an objective one. The question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the matter he or she is required to decide.[9] An allegation of apprehended bias must be “firmly established”.[10] Robust and vigorous questioning by the Tribunal will not of itself amount to a finding of apprehended bias.[11]
[9] Isbester v Knox City Council (2015) 320 ALR 432 at [12] (Kiefel, Bell, Keane and Nettle JJ).
[10] SZSTN v Minister for Immigration [2014] FCA 257 at 18 (Flick J); AZACK v Minister for Immigration (2014) 144 ALD 72 at [10 (Mansfield J); SZTMH v Minister for Immigration (2015) 230 FCR 550 at 40 (Rangiah J).
[11] SZTMH v Minister for Immigration (2015) 230 FCR 550 at [40] (Rangiah J), citing SZRUI v Minister for Immigration [2013] FCAFC 80 at [4] Allsop CJ), [24] (Flick J) and [87] (Roberston J).
The transcript of the hearing does not suggest any apprehension of bias. As submitted by Counsel for the First Respondent the transcript demonstrates that the Tribunal member made every effort to understand the Applicant’s claims, and to explain her concerns. Further, the Tribunal member spent considerable time ensuring the Applicant put before the Tribunal all those matters the Applicant wished to place before the Tribunal, before spending further time and care, engaging with the Applicants as to their evidence and those matters in relation to which the Tribunal had significant concerns, many of which went to findings of credibility.
On the hearing before the Court on 14 April 2016 the Applicant said, in oral submissions that the Tribunal member had “dismissed all my evidence in an irresponsible way. And also, personally, I don’t think that member believed in me. So, well, Can she say it is not a discrimination? When I think back, I could remember those facial expressions and those tones that the member used…”. Again, the Court notes the Applicant has not put before the Court any evidence to support this claim. The Applicant has had ample opportunity to put such evidence before the Court. The Applicant placed no audio recordings before the Court. There is nothing in the transcript evidence before the Court to indicate that the Tribunal member was anything other than thorough, polite, considerate and appropriate in her conduct of the Tribunal hearing. No criticism of any description can be justifiably levelled at her. No finding of apprehended bias can remotely be made out.
The Applicant disagrees with the Tribunal’s very proper findings of fact. They contain a clear credibility finding against the Applicant. Findings of fact are a matter for the Tribunal. The Tribunal’s decision was open to it on the evidence before it and no jurisdictional error attends the Tribunal’s decision.
The application will be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 22 July 2016
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