MZXKZ v Minister for Immigration - [2007] FMCA 87

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXKZ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 87

MIGRATION – Protection visa application – Refugee Review Tribunal – alleged jurisdictional error – alleged apprehended bias – alleged failure of Refugee Review Tribunal to comply with s.425 of the Migration Act – application dismissed.

Migration Act 1958 (Cth), ss.420, 425

Applicant VBAB of 2002 v Minister for Immigration and Multicultural Affairs [2002]
Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584
Liu v Minister for Immigration and Multicultural Affairs [2001] 187 ALR 348
Minister for Immigration and Multicultural Affairs v Cho [1999] 92 FCR 315

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126.
Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCA FC 142.
Minister for Immigration and Multicultural Affairs v SZGNF [2006] FCAFC 138.
NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 211 ALR 660.
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
NAQF v Minister for Immigration and Multicultural Affairs [2003] FCA 781.
Re: Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425.
SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280.
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 384.
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs Multicultural and Indigenous Affairs [2003] FCA 872.
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 136 FCR 407

Applicant:

MZXKZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTRAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 839 of 2006

Judgment of:

O’Sullivan FM

Hearing date:

22 January 2007

Date of Last Submission:

22 January 2007

Delivered at:

Melbourne

Delivered on:

2 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr Knowles

Solicitors for the Applicant:

Public Interest Law Clearing House

Counsel for the Respondent:

Mr Heerey

Solicitors for the Respondent:

Clayton Utz

ORDERS

The name of the first respondent be amended to the Minister for Immigration and Citizenship.
The application filed 6 July 2006 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 839 of 2006

MZXKZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 6 July 2006 the applicant sought that the decision of the Refugee Review Tribunal (“the Tribunal”) dated

26 April 2006 and handed down on 19 May 2006 be quashed, and that orders be made remitting the matter to the Tribunal to be determined according to law.
At the hearing of the matter, the applicant relied upon a further amended application filed 6 November 2006, an affidavit filed

6 November 2006 (which annexed the transcript of the Tribunal’s hearing) and contentions of fact and law also filed 6 November 2006.
The respondent has also filed contentions of fact and law on

4 December 2006 and there has been a Court book (“CB”) filed on

12 September 2006 which has been taken into evidence.

Background

The relevant background is set out in the contentions of fact and law filed by the parties and can be summarised as follows.
The applicant is a citizen of the Peoples Republic of China (“CB2”). She arrived in Australia on 14 November 2005 as the holder of a visitor visa (CB 3 and 30). On 2 December 2005 she applied for a protection visa (CB1-31). She claimed that, on account of her practice of Falun Gong and her association with other Falun Gong practitioners in China and Australia there was a real chance that the Chinese authorities would persecute her if she returned to China (CB 7-11).
On 13 January 2006, the delegate of the first respondent refused to grant the applicant a protection visa (CB 37-41).
On 2 February 2006, the applicant applied to the Tribunal for a review of the delegates decision (CB 42-45).
The applicant gave evidence of the hearing conducted by the Tribunal on 26 April 2006 (CB 58-60). The duration of the hearing was approximately 1 hour. The Applicant gave evidence that she had practiced Falun Gong in China with, amongst others, a person named “Ni Ko Chen.” She claimed that this person went missing in 2004. She also claimed that another practitioner with whom she had associated had disappeared.
The Tribunal made its decision in which it affirmed the delegate’s decision not to grant the applicant a protection visa on 26 April 2006 (CB 56-64).
The Tribunal sent correspondence to the applicant dated 2 May 2006, which said the Tribunal would hand down its decision on 19 May 2006 (CB 51-52). On 19 May 2006, the Tribunal handed down its decision (CB 51-53).

The application

Counsel for the applicant confirmed she relied only on the grounds in the further amended application. In both the further amended application and before this Court the Applicant advanced two grounds of criticism of the Tribunal’s decision. The grounds contained in the further amended application were:
“1.The Tribunal’s decision is affected by jurisdictional error because it was affected by apprehended bias;

Particulars

Towards the end of the hearing before the Tribunal on

26 April 2006, the Applicant asked if she could submit further material with the Tribunal. In it’s decision, the Tribunal relevantly stated that:
The applicant asked if it was possible to have time after the hearing to make a further submission.
There followed some discussion about the possible contents of the submission. The Tribunal said that if the Applicant had genuine corroborative evidence she would have submitted it by now, as encouraged to do by the protection visa application form. The Tribunal put to the applicant that it considered it likely she was trying to prolong the finalisation of the case.

The Tribunal made it’s decision on the same day of the hearing.
This conduct of the Tribunal was open to excite in the mind of a fair-minded and informed observer a reasonable apprehension that the Tribunal did not bring an open mind to its task of determining the applicant’s case.
2.The Tribunal failed to comply with section 425 of the Act.

Particulars

The Applicant refers to and repeats the particulars in respect of ground 1. The Tribunal’s conduct could reasonably be expected to have discouraged the applicant from providing evidence to the Tribunal which was relevant to particular aspects of her claims.”

As referred to at paragraph 2 the applicant relied on her affidavit filed 6 November 2006 wherein she disposed so far as is relevant for the present purposes:
“I attended a hearing before the Refugee Review Tribunal (“Tribunal”) on 26 April 2006. I was unrepresented. I was assisted by a Mandarin interpreter due to my lack of English language skills.
Now produced and shown to me and marked “SS-1” is a copy of the transcript of the hearing before the tribunal on 26 April 2006.
Towards the end of the hearing, I asked the Tribunal member if I could submit further material with the Tribunal after the hearing. In particular, I wished to provide the Tribunal with photographs of myself and others practising Falun Gong in China.
From the response I received from the Tribunal, I formed the impression that any submission of further material with the Tribunal would not assist my case.
One or two days after 2 May 2006, I received correspondence from the Tribunal of that date. The correspondence stated that the Tribunal had already made its decision.
Upon receipt of this correspondence, I believed that I was no longer able to provide any further material to the Tribunal.”
As stated earlier the applicant sought relief by way of writs of certiorari and mandamus.

The Tribunal’s hearing

As referred to earlier, a transcript of the Tribunal’s hearing is in evidence. There is no tape of the hearing before the Court so it is not possible to consider either the tone of the voices in the hearing or other reactions beyond those that appear in the transcript. Nonetheless, in order to put the applicant’s first ground of review in its proper context it is necessary to review the transcript of the Tribunal hearing in some detail.
After identifying the interpreter and the applicant’s sister who accompanied her to the hearing the Tribunal said:
“MEMBER:Okay. Right, I want to start by giving you some information about the role of the tribunal and how the hearing will be conducted. The tribunal has to determine whether you are a refugee within the meaning of the United Nations Refugees Convention. That means someone who has a well-founded fear of being persecuted, which means seriously harmed, in their country for one of the reasons that are in the convention, including, for example, their religion. So this is the test that I have to apply to your case and in doing so the tribunal from the Department of Immigration.
My role is to look at all the information and make my own findings and vouch to reach my own decision in your case. For this reason I have the department’s file containing your protection visa application and the information that you submitted with that application. I am therefore aware of the claims that you’ve made and I’m going to be asking you some questions about those. I may also invite you to comment on the information that I have from others sources about the situation in your country. I will give you the opportunity to say anything else that you want to say in support of your application.”[1]
[1] Transcript P2, Lines 22-39
The transcript then records the applicant being affirmed, asked questions about her date of birth, name, background, employment history and when she came to Australia. It then records the following exchange:
TRIBUNAL MEMBER:    Yes. Why don’t you want to return to China?
INTERPRETER:              Because I’m a Falun Gong practitioner.
TRIBUNAL MEMBER:    How long have you been a Falun Gong practitioner?
INTERPRETER:              From 1997 to 1999 I was practising, post 99 it was not allowed to be practised.
TRIBUNAL MEMBER:    Did you not practice it at all after 1999?
INTERPRETER:              No, because the government was really clamping down on the practitioner. Only sometimes like I meeting with friends and we had to be very careful.
TRIBUNAL MEMBER:    Where did you practice that?[2]
[2] Transcript P6 Line 41- P7 Line 12
There follows further questions and answers regarding where the applicant said she practiced Falun Gong in China (and with whom). There were also questions whether (and if so why) she stopped practising when in China. The Tribunal also asked the applicant what she knew of those who she said she had practised with. The transcript then records the following exchange between the Tribunal and the applicant:
TRIBUNAL MEMBER:    Okay. Now, how does Falun Gong work?
INTERPRETER:              Firstly, we would read the Zhuan Falun, the book of Zhuan Falun or the (indistinct)
TRIBUNAL MEMBER:    Yes.
INTERPRETER:              It is a very good book. After reading the text I felt emotionally relaxed.
TRIBUNAL MEMBER:    Which parts of the book impressed you in this way?
INTERPRETER:              The whole book really attracts my attention.
TRIBUNAL MEMBER:    Do you have favourite chapters?
INTERPRETER:              I’m interests in all the parts. I finished reading the whole book in one night.

I mean, after reading the book – like, at first because of my ill health I was thinking perhaps being a Christian, having some sort of faith it would help, but- I mean, after reading what has been explained or espoused by the book then I started to practice. 10 months later I felt like emotionally, psychologically everything has made a lot of improvement. I mean, I did not meant to like against anything the government or anything.
TRIBUNAL MEMBER:    How did the exercise program work, then? Can you describe that to me.
INTERPRETER:              Firstly, your heart has to be at peace and thinking that the world of Falun is within your heart, do not have any other concepts, do not have any other thoughts.
TRIBUNAL MEMBER:    Yes.
INTERPRETER:              I mean, it was very beneficial for me both physically and psychologically and also on 11 December when I was in Sydney there was this Falun Gong demonstrations.
TRIBUNAL MEMBER:    You mean December last year?
INTERPRETER:              11 December last year.
TRIBUNAL MEMBER:    And?
INTERPRETER:              And I observed that in the demonstration there were Chinese, there were other nationalities who were all practising Falun Gong.
TRIBUNAL MEMBER:    Yes. But can you describe the exercise regime in more detail?
INTERPRETER:              Explain the exercise?
TRIBUNAL MEMBER (indistinct)
INTERPRETER:              There- in total there are five exercises.
TRIBUNAL MEMBER:    Yes. And can you tell me more about each one?
INTERPRETER:              Do you want me to practise to you?
TRIBUNAL MEMBER:    How many are done – are they all done standing up or sitting down or- - -
INTERPRETER:              Some of them were done sitting down, the other was standing. Some of them you are in like a meditative sort of posture. Every time when you practise the exercise (indistinct) meditate like for one hour.
TRIBUNAL MEMBER:    So how many are done seated and how many are done standing?
INTERPRETER:              Two are in sitting, three are in standing.
TRIBUNAL MEMBER:    So the seated exercises come first or last or in the middle or – what’s the order?
INTERPRETER:              The first one is in a standing position where the arms are extended.
TRIBUNAL MEMBER:    Yes. Is that all there is to it? Is that the whole exercise?
INTERPRETER:              This is the first chapter of the first exercise. In total there are five.
TRIBUNAL MEMBER:    Yes. Okay, you were telling me which – what is the order of sitting and standing.
INTERPRETER:              The first one is standing, the last one is sitting.
TRIBUNAL MEMBER:    Yes, and what happens in the middle?
INTERPRETER:              In the middle there was standing and sitting.
TRIBUNAL MEMBER:    Do you know the names of any of the exercises?
INTERPRETER:              The first half – I mean, the first exercise – I mean, I haven’t practised for a long time.
TRIBUNAL MEMBER:    Do you know the name of the hands, the position of the hands that is very common to all of the exercises?
INTERPRETER:              I do not understand your meaning.
TRIBUNAL MEMBER:    There’s a common position of the hands in relation to each other.
[NAME]:I will show you.
INTERPRETER:              The hands are (indistinct)
TRIBUNAL MEMBER:    What’s the name of that position?
INTERPRETER:              When we practise Ni Ko Chen would say it, we follow it.
TRIBUNAL MEMBER:    But you ---
INTERPRETER:              Well, because the time in which I practise wasn’t that long, maybe more than a year.
TRIBUNAL MEMBER:    But you said that you also read the book in which the names of the common features of the exercises are read out in details.
INTERPRETER:              Well, because this book was quite a long time ago and after reading the book, this book I burn it, including the disk, I also burn it as well.”[3]
[3] Transcript P11 Line 27 to P14 Line 17
The transcript then records questions and answers regarding whether the applicant practised in Australia. The following exchange is then recorded:
TRIBUNAL MEMBER:    Okay. What is the Falun then?
INTERPRETER:              Do I need to answer the questions?
TRIBUNAL MEMBER:    Well if you can I’d like you to.
INTERPRETER:              Because I - - -
TRIBUNAL MEMBER:    I’m getting the impression that you don’t actually know that much about Falun Gong, which would suggest to me that you’re not in fact a practitioner.

My understanding is that Falun Gong practitioners continue to read Zhuan Falun.
INTERPRETER:              Continue to - - -
TRIBUNAL MEMBER:    Continues to read Zhuan Falun, the book, and would be familiar with the structure, would be able to tell me about some of the chapters of the book, would be able to describe what the concept of Falun is.
INTERPRETER:              Because I practise periodically I’m not that obsessed and I’m very scared.

I mean, if I were given the environment whereby it was a stable environment, then I – because once the term Falun Gong is mentioned, I somehow getting very nervous, very anxious.
TRIBUNAL MEMBER:    You also make a mistake describing the sequence of the exercises. It’s four standing followed by one seated. So can you say anything about what Falun is and how it works?
INTERPRETER:              Well, I mean, I read this text quite a long time ago so I really cannot remember.
TRIBUNAL MEMBER:    I also think that if you were a Falun Gong practitioner you would have – I mean, you’ve been here for around about five months now, that you would have – considering that it is safe to practise in Australia, you would have joined a group and been practising on a regular basis.
INTERPRETER:              Yes, I mean, after I came to Sydney at the – I mean, a demonstration I was told that – and then I came to Melbourne.

In Melbourne I was told at the Smith Street or the William Street there was this gentleman by the name of Mr Fan because he said that you should – but later on I went to Sydney.
TRIBUNAL MEMBER:    Mm’hm.
INTERPRETER:              He was also – because he was also quite nervous and then he was not relaxed and because of my work unit knows that I’m in Australia because to practise here, many people practise here, they were also quite nervous as well. I don’t know if or not my practising here would this practise implicate or affect my family.
TRIBUNAL MEMBER:    Okay. Given however your general lack of familiarity with the details of Falun Gong I am inclined to the view that your approaches to Falun Gong practitioner in Sydney and in Melbourne has been done to try to find the ways of supporting your refugee application and the legislation requires me to disregard activities undertaken in Australia for that purpose.
INTERPRETER:              I mean, coming here is to practise and also – I mean, really my health situation is not very good. I mean, I’m of a very sort – in a predicament. It is true that I am safe here, my daughter, my mother, my parents, they’re over here. I don’t know if or not my practise would somehow affect them. Because in order to effectively practise you need to have very peace of mind and peace of heart.
TRIBUNAL MEMBER:    Okay. I don’t have any other questions that I want to ask you. Is there anything else that you want to say about your application before we conclude the hearing.[4]
[4] Transcript P14 Line 42 to P16 Line 20
The transcript then details the exchange referred to in the applicant’s further amended application and set out in full at paragraph [24] below.

The Tribunal’s decision

At CB 58, having considered the relevant law and the definition of ‘‘refugee’’ the Tribunal summarised the applicant’s claims and evidence.
Relevantly, for present purposes, at CB 60 the Tribunal said:
“The applicant asked if it was possible to have time after the hearing to make a further submission. There followed some discussion about the possible contents of a submission.

The Tribunal said it considered that if the applicant had genuine corroborative evidence she would have submitted it by now, as encouraged to do by the protection visa application form.

The Tribunal put it to the applicant that it considered it likely she was trying prolong the finalisation of the case.”
The Tribunal’s decision at CB 63-64 was as follows:
“Findings and Reasons
Based on the information before it, the Tribunal finds that the applicant is a Chinese citizen.
For the purposes of this decision, the Tribunal operated on the understanding that Falun Gong is a religion and that some practitioners of Falun Gong have been persecuted in China for reasons of their religion and their political opinion.
However, the Tribunal does not accept that the applicant is or ever was a Falun Gong practitioner. She was unable to say anything concrete about the philosophy, as espoused in Zhuan Falun. She described the exercises inaccurately, and was unable to supply basic terminology (such as the names of any of the exercises or the hand positions). Other than mentioning its resemblance to a wheel, the applicant could not say what the Falun is, which is an essential element of how Falun Dafa achieves the enlightenment of its practitioners. Bearing in mind the importance of not expecting adherents of a faith to know all of its finer details, the applicant’s level of knowledge was still not sufficient for a genuine practitioner.
It follows that the Tribunal does not accept that the applicant was at risk of harm by the Chinese authorities in connection with Falun Gong. It does not accept that she is associated with anyone who is of adverse interest to the Chinese authorities, in connection with Falun Gong.
It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However, in relation to the applicant’s Falun Gong involvement in Australia, this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia may be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the convention reasons unless the applicant satisfies the decision maker that he or she engaged in conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.
The Tribunal is not satisfied that the applicant’s involvement in Falun Gong in Australia was done otherwise than for the purpose of strengthening her claim to be a refugee. She was not, based on the Tribunal’s findings, involved in the Falun Gong in China nor did she become deeply involved in the practise in Australia, going by her low level of knowledge about the practise, and her own evidence about the number of times she had attended practise sessions.
The Tribunal is not satisfied on the evidence before it that the applicant has a genuine interest in practising Falun Gong either in Australia or if she returns to China.
The Tribunal is not satisfied that the applicant faces a real chance of persecution in China, in connection with Falun Gong.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

Apprehended bias

As indicated earlier the applicant’s first ground of review was apprehended bias.

Submissions of the applicant

Before this Court in support of its submission that the Tribunal’s decision was affected by apprehended bias the applicant relied upon the following exchange between the applicant and the Tribunal member:
Tribunal:Okay. I don’t have any other questions that I want to ask you. Is there anything else that you want to say about your application before we conclude the hearing.
Interpreter:   If you need some – a submission or details, is it possible I can make some submissions later?
Tribunal:What would you make a submission about?
Interpreter:   For instance, I mean, like now I have joined this William Street organisation.
Tribunal:But you’ve just told me in the hearing that you have associated with the William Street group what more would you like to say about that in a submission?
Interpreter:   To prove that I have practised Falun Gong in China?
Tribunal: What sought of evidence would you bring forward in a submission to prove that?
Interpreter:   I mean, at the moment I have only kept photos, all the other information or materials I have burned them.
Tribunal:What photos do you have?
Interpreter:   When Ni Ko Chen was teaching the practise and while we were practising.
Tribunal:I find it very difficult to believe that you could come forward with evidence of that nature given your lack of knowledge about really important aspects of Falun Gong practise. I also think that if you had such evidence you would have produced it before now.
Interpreter:   Well because these photos are in China. I did not bring to Australia.
Tribunal:But you made a refugee application several months ago and that application invites you to submit or at least mention what you’re going to submit by way of evidence in support of your application. That’s why I came to the view that your wish to have further time to make further submissions is most probably a way of delaying the outcome of this case. Do you want to say anything else?
Interpreter:   Well, anyway, whether you believe or not why I am period of my stay here I will want to practise.
Tribunal:Okay. I will now go away and give consideration to that comment and all of the other evidence that you have put forward and I thank you for coming to the hearing. Thank you, interpreter.”[5]
[5] Paragraph 2.6 Applicant’s Contentions of Fact and Law filed 6 November 2006. This corresponds with the transcript annexed to the Applicant’s affidavit also filed 6 November 2006
The applicant submitted that:
·when regard was had to the exchange set out above during the Tribunal hearing; and
·when one considers that later that day the Tribunal made its decision, in which it affirmed the delegates decision not to grant the applicant a protection visa; and
·
the Tribunal sent correspondence to the applicant dated

2 May 2006 stating it would hand down its decision on

19 May 2006;
a fair-minded and informed observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision.
In submissions the Applicant, relied on the decision of Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 (“VFAB”) where her Honour states at paragraphs [82] and [84]:-
“82I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 (“Applicant VCAT of 2002”): see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant’s claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant’s claim when the hearing commences: see 425(1)-(2). The vice in this case was that, by the Member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the member’s questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.
83It is no answer, in this case, to say that the Member recollected herself at the end of the hearing, if (as I find) her conduct gave rise to a reasonable apprehension that she might have so closed her mind to the applicant’s case that this might distort her judgment. It is, moreover, no answer to say that the applicant was assisted by a migration agent, if (as I find) the agent was led to believe that her participation was antithetical to his interests and that there was little, if anything, that she could say that might lead the Member to change her mind. Disqualifying bias arises because the Member has so conducted herself as to create an apprehension that she might not approach her decision-making with a mind capable of being changed by further evidence, information or argument. In any case, the applicant’s evidence (which, as I have said, I accept) was that he was overborne in some degree. Finally, as noted already, the Tribunal’s reasons for decision provide no answer to the applicant’s case.
84It goes almost without saying that a fair-minded lay observer would take a fair view of all the participants in the hearing, including the Member herself. Such a fair-minded person would fairly consider the Member’s conduct of the hearing, bearing in mind the legal and other constraints on her. Any such person would appreciate the difficulty of the Member’s task. Nonetheless, as I have said, I am constrained to find that in this case, a fair- minded lay observer, who was properly informed, might reasonably apprehend the Member might not have brought to the hearing a mind capable of being persuaded that the applicant’s account was not a fabrication.” The principles to be applied when considering a claim of apprehended bias are well settled.”
Counsel for the applicant also cited the decision of the Full Court of the Federal Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH”). In that case Allsop J. with whom the other Judges of the Court agreed set out the test for apprehended bias as follows:
“The general test for apprehended bias is whether the relevant circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker might not bring or have brought an impartial mind to bear on the decision.”[6]
[6] NADH – per Allsop J at [14]
The applicant referred to the comments of Alsop J. in NADH where His Honour said in relation to the necessary apprehension that it is “not as to the fact of likelihood of a lack of impartiality, but a possibility (real and not remote) thereof.” [7]
[7] Ibid at [17]

Submissions of the respondent

Counsel for the respondent relied on Re: Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425 (“Ex parte H”). In that case the High Court acknowledged the need for an inquisitorial tribunal to test evidence vigorously provided that it did not go as far to overbear and intimidate the person who was giving the evidence such that a fair minded lay observer or properly informed lay person would readily infer that there is no evidence the witness can give which will change the decision maker’s view.
Counsel for the respondent submitted that in this case a hypothetical fair minded lay observer would have observed that prior to the hearing:
a.The applicant had provided no materials to the First Respondent’s department in support of her protection visa application other than copies of her passport and visitor’s visa.
b.The applicant had provided no statement or other materials in her application to the Tribunal.
c.On 23 February 2006 the Tribunal wrote to the applicant and stated, inter alia, that she should “immediately send us any documents, information or other evidence you want the Tribunal to consider.” (CB 47.2)
d.The applicant did not send any material to the Tribunal in response to this invitation, other than the Response to Hearing Invitation form dated 28 March 2006 (CB 50).[8]
[8] Respondent’s written submissions Paragraph 9.
Counsel for the respondent submitted that during the hearing, a hypothetical fair minded lay person would have observed that the Tribunal sought to test the applicant’s knowledge of Falun Gong.

The respondent submitted that the Tribunal asked various questions which, it was open for the Tribunal to conclude, the applicant was unable to answer correctly, directly or completely including:
a.At T12 line 24 to T14/3 (sic) line 33, the Tribunal questioned the applicant about the exercise regime of Falun Gong but she was unable to name any of the exercises(T13 line 33) or name the common hand positions (T14 lines to 7).
b.At T14 line 42 having been asked what was the Falun Gong the applicant said “Do I need to answer the questions?” and the Tribunal then said “well if you can I would like you to?” there was then a long pause (CB 60.5) after which the Tribunal said I am getting the impression that you don’t actually know much about Falun Gong which would suggest to me that you are not in fact a practitioner.
c.The Tribunal pointed out to the Applicant that she had made a mistake in describing the sequence of Falun Gong exercises (T15 line 22).
d.At T 15 line 24 the Tribunal asked “So can you say anything about what the Falun Gong is and how it works?” To which the applicant answered “Well, I mean, I read this text quite a long time ago so I really cannot remember.”[9]
[9] Respondent’s written submissions Paragraph 10.
The Respondent submitted that the Court should not simply refer to the section of the transcript the applicant relied on at paragraph [24] above but the whole of the transcript in considering the applicant’s claim of apprehended bias.
Counsel for the respondent submitted that when having regard to the overall context of the case and the whole of the hearing, it would be hardly surprising to the hypothetical fair minded lay observer that the Tribunal had expressed doubt whether the applicant could at that late stage in her application and review proceeding provide further photos which would substantiate her claim of practising Falun Gong in China.[10]
[10] Respondent’s written submissions Paragraph 11.
The respondent submitted that during the hearing the Tribunal was doing nothing other than going about its mandated task and properly exercising it jurisdiction by vigorously and plainly confronting the applicant on matters which bore adversely on her credibility in the manner described in Ex parte H.[11]
[11] Respondent’s written submissions Paragraph 12.
The respondent submitted that unlike Ex Parte H, NADH or VFAB the present case is more akin to that before Hill J. in SZDMO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 384.

In that case His Honour rejected a claim of bias by finding at [27]:
“At worst, what the transcript revels is that the Tribunal adopted a probing approach to the evidence of the appellant, indicating to the appellant, while doing so, that there were difficulties with the evidence the appellant advanced.”
In relation to the applicant’s request at the end of the hearing, the respondent submitted it was clear as early as the date of the application for review on 21 January 2006 that the applicant should provide “any information, documents or submissions” she wanted the Tribunal to consider (CB 44).
The respondent submitted this was reiterated by the Tribunal on

23 February 2006 (CB 47) and again on 16 March 2006 (CB 48).
The respondent also submitted that had the applicant submitted material after the decision had been made but prior to the decision being handed down the Tribunal would have been able to recall its decision and consider that material (see Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] 185 ALR 531 at [35] – [38] per Merkel J.)
In summary, the respondent submitted that when the Tribunal’s hearing was considered as a whole a fair minded lay observer properly informed as to the nature of the proceedings and the matter in issue would not infer that the Tribunal had closed its mind.

Consideration

Both the applicant and the respondent approached this matter on the basis of apprehended bias.
In VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [25] (“VFAB”) Kenny J. set out the test as follows:
“25The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-make and its proceedings. “[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned”: see Ex parte H, at 427. Further, their Honours posited, at 434-5, that:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
26As in the present case, Ex parte H concerned the Refugee Review Tribunal. The Court held that, in the circumstances, having regard to the transcript of the hearing before the Tribunal, “a fair-minded lay observer or a properly informed lay person” might infer that there was nothing that the prosecutor could say or do “to change the tribunal’s preconceived view that he had fabricated his account of the events upon which has based his application for a protection visa”: see Ex parte H, at 435 and compare Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59, at 71 per McHugh and Gummow JJ. In so holding, the Court referred to “the constant interruptions of the male prosector’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events: see Ex parte H, at 435.
27In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a Court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question…
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.”
The starting point for the applicant’s criticism of the Tribunal’s decision was how it dealt with her request referred to at paragraph [24] above.
In both written and oral submissions the Court was referred by the applicant only to the section of the transcript of the Tribunal’s hearing at paragraph [24] above.
In my view, in the context of this case, not only is it appropriate to have regard to the obligation of the Tribunal pursuant to s.420 of the Act to provide a mechanism of review which is fair, just, economical and quick but also to the whole of the transcript of the hearing.
As set out above when the transcript of the hearing is considered, it shows the Tribunal had raised its concerns with the applicant about her knowledge of Falun Gong. It performed its duty to raise with the applicant information that was relevant to the applicant’s credibility and which might ultimately affect its reasoning. However, throughout the hearing the Tribunal was polite and courteous.
When regard is had to the transcript of the hearing as a whole it is clear the Tribunal had adopted a probing approach to the evidence of the applicant. Further it is also clear from the transcript the Tribunal indicated to the applicant while doing so that there were difficulties with the evidence advanced by the applicant.
Had the Tribunal undertaken only a superficial review without the detailed exchanges with the applicant that are evident on the transcript, it might be said that a fair minded lay observer might infer that there was nothing the applicant could do or say to change the Tribunal’s view. However, that is not the case in this particular matter.
The Transcript in this case shows there is none of the “numerous displays of irritation, impatience, frustration and sometimes sarcasm” that Her Honour found in VFAB on the part of the Tribunal.
Moreover, in my view the transcript in this case does not show that the Tribunal’s questioning of the applicant “appeared calculated to undermine [her] case, rather than to facilitate a non-partisan investigation into the facts.” (see VFAB at [82])
It is true that the transcript shows the Tribunal pointing out to the applicant that it had difficulties with her descriptions of exercise regimes and knowledge of Falun Gong.
However, on the basis of the evidence before the Court the Tribunal’s conduct does not approximate that in cases such as VFAB.
At the end of the hearing the transcript makes clear the Tribunal said to the applicant “I don’t have any other questions that I want to ask you. Is there anything else that you want to say about your application before we conclude the hearing?”
The applicant then made the request referred to in paragraph [24] above. The Tribunal properly gave the applicant time to explain the reason for her request. The transcript indicates the applicant made mention of having photos in China.
The Tribunal member listened to the applicant’s wishes, considered those wishes, considered other relevant matters such as the fact the applicant had not provided the material beforehand and had already had a reasonable opportunity to do so.

The transcript makes clear that the Tribunal considered the request and for the reasons it gave the Tribunal refused the request (see paragraph 24 above).
It is noted that no photos are in evidence before the Court.
The Tribunal considered and gave reasons for its refusal to delay making a decision. The fact that in doing so it said it “came to the view” that the request was “most probably a way of delaying the outcome…” of the case is not such as to establish apprehended bias. I am not satisfied this would of itself give rise to a reasonable apprehension of bias in the mind of a lay observer given this occurred at the end of the hearing.
Moreover having dealt with the request the Tribunal then went on to say:
“Ok. I will now go away and give consideration to that comment and all of the other evidence that you have put forward and I thank you for coming to the hearing.”[12]
[12] Transcript of hearing p 17 Line 21.
In my view when regard is had to the transcript of the hearing as a whole and the Tribunal’s reasons it could not be said:
“Conclusions had been reached with a mind not open to persuasions and unable or unwilling to evaluate all of the material fairly.” (NADH at [15] )
The manner in which the Tribunal dealt with the applicant’s request would have satisfied a lay observer aware of the Tribunal’s processes that the Tribunal had considered the request made at the end of the hearing and declined it. Put simply, a fair minded lay observer who understood what was going on and what the proceedings were about could not, on the Tribunal’s conduct set out in the transcript, believe that it did not bring an impartial mind to the determination of the question before it. (see Minister for Immigration and Multicultural Affairs v SZGNF [2006] FCAFC 138 at 14).
Further, in so far as the applicant seeks to take issue with the Tribunal making its decision on the same day as the hearing as a further ground for the claim of apprehension of bias, its attempt to do so in this case, is in my view, misplaced.
I accept the respondent’s submissions that as has been held by the Federal Court in SZANH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1280 (“SZANH”) even if the Tribunal makes an ex tempore decision that does not establish apprehended bias.
Finally, the last link of the applicant’s argument concerning apprehended bias was that on 2 May 2006 the applicant received correspondence from the Tribunal saying it had made its decision and it would be handed down on 19 May 2006.
Again, and for the reasons set out above this claim is misplaced. In SZANH at [39] Sackville J. said:
“It is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant.”
On a fair reading of the transcript of the Tribunal hearing and its reasons a fair minded person would be unable to form a view that the Tribunal had not given the applicant the benefit of the doubt.

Moreover such a person properly informed would be cognisant that it is commonplace for Courts and Tribunals to announce a decision or give ex tempore reasons immediately after the hearing is completed.
In summary, the Tribunal’s findings when read with the transcript of the applicant’s evidence do not support a conclusion that a properly informed lay person might infer the Tribunal might not have brought on impartial mind to bear on the decision. Accordingly, the ground is not made out.

Failure to comply with section 425

The second ground of alleged jurisdictional error was a failure to comply with s.425 of the Act which provides as follows:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The applicant submitted that the Tribunal’s conduct during and after the hearing could reasonably be expected to have discouraged the applicant from providing evidence to the Tribunal. The applicant, so it was put, was denied the opportunity to appear and give evidence on an issue the Tribunal itself considered to be critical to the outcome of the case.
In support of its submission the applicant relied on the decision of the High Court in ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 211 ALR 660.
However, in that case, unlike the present, at the conclusion of the hearing the Tribunal told the applicant that because there was some questions it wished to put to him about some inconsistencies in his evidence. The Tribunal in that case said it would write to him setting out those questions and inviting a response, together with any further information within 21 days. The Tribunal did not write to the Applicant in that case and without further notice handed down its decision affirming the delegate’s decision not to grant a protection visa. In that case it was held that the Tribunal had failed to complete the review process.
The applicant also referred to Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] 128 FCR 553; [2003] FCAFC 126 at [30]-[38] in support of the proposition that, under s.425 of the Act, the Tribunal is under a statutory obligation to issue a genuine invitation to attend a hearing.
The applicant relied on Applicant VBAB of 2002 v Minister for Immigration and Multicultural Affairs [2002] and Minister for Immigration and Multicultural Affairs v Cho [1999] 92 FCR 315 in support of its submission that the Tribunal’s conduct could have such a damaging effect as to preclude the Tribunal from complying with s.425 of the Act.
The applicant also cited NAQF v Minister for Immigration and Multicultural Affairs [2003] FCA 781. However, in the present case there were no statements from the Tribunal to the applicant that it was not necessary for the applicant to give evidence on an issue which remained alive.
Counsel for the applicant also referred to the Court to Liu v Minister for Immigration and Multicultural Affairs [2001] 187 ALR 348, where it was held at [44] that the applicant’s right to appear before the Tribunal is more than a mere right to be invited. It includes the right to present argument before the Tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material.
The applicant had also cited Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584. However in that case, unlike the present, His Honour found at [79] the Tribunal;
“Sought to impose an arbitrary time limit on her and it interrupted her to the extent that she was prevented from giving evidence as she wished to.”
Counsel for the respondent noted that s.422B of the Act applies in this case. Division 4 of Part 7 of the Act is taken to being an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (see SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). Section 425 is included in Division 4 of Part 7 of the Act.
Counsel for the respondent submitted that it is clear in the present case that the Tribunal did invite the applicant to a hearing to give evidence and present arguments relating to the issues in relation to the decision under review.
It was submitted by the respondent that there was no failure by the Tribunal to comply with the explicit requirements of s.425.

The respondent relied on Minister for Immigration and Multicultural Affairs v SZFDE (2006) FCA FC 142 (“SZFDE”).
In SZFDE at [211] Graham J. reviewing the authorities on the Tribunal’s obligations under s.425 referred to VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 136 FCR 407 (“VNAA”).
His Honour noted that in VNAA:
“Sundberg and Healy JJ with whose reasons for judgment Gyles J expressed his general agreement said at [14]:
“Section 425 merely requires the Tribunal to invite the applicant to appear…”
In SZFDE, His Honour, having reviewed the authorities including Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 said at [231]:
“In my opinion the more recent Full Court opinion in VNAA correctly defines the extent of the Tribunal’s obligations under

s. 425”
In any event in this case, there is no evidence that the applicant did not receive the notice of hearing or that she was denied the right to appear, to present argument or to comment on adverse material.
There is no evidence that the applicant was unable to attend because of ill health nor is there any evidence that statements made by the Tribunal prior to the hearing misled the applicant as to the issues likely to arise before the Tribunal. There is no evidence that there was no interpreter or an adequate interpreter. Finally, there is no evidence that the applicant was under any disadvantage of which the Tribunal was not aware.
The transcript of the Tribunal’s hearing reveals that the Tribunal member was courteous and polite and the questioning was simple and direct and could not be described in any way as intimidatory or designed to trap the applicant, or contrived to prevent the applicant from giving her evidence.
Unlike in VBAB, in this case there were no comments made by the Tribunal which misled the applicant as to the issues that would influence the Tribunal’s resolution of the ultimate question nor was there advice by the Tribunal to the applicant that it was not necessary to give evidence on a particular issue.
This is not a case where the Tribunal refused an application for an adjournment in advance of the hearing or an application made by virtue of the illness or inability of the applicant to give evidence. In this case the applicant had been invited for a hearing (CB 48), had attended and had an opportunity to give evidence and present arguments in relation to the decision under review. [13]
[13] Transcript attached to Applicant’s affidavit filed 6 November 2006.
When regard is had to the transcript of the hearing and the Tribunal’s reasons it is clear the applicant had an opportunity to give evidence and present arguments relating to issues arising in relation to the decision under review.
On the evidence before me, I cannot be satisfied that the Tribunal has failed to comply with the requirements of s.425 of the Act.

Conclusion

For the above reasons I do not consider the applicant has made out a case that the Tribunal’s decision was affected by jurisdictional error.
It follows that the application should be dismissed.
The application having been dismissed I will hear the parties as to the appropriate order as to costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM

Deputy Associate: R. Lombardo

Date: 16 February 2007