Sun Zhan Qui v Minister for Immigration and Ethnic Affairs
[1997] FCA 1488
•23 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - Refugee application - Challenge to decision of Refugee Review Tribunal - Claim of well-founded fear of persecution on basis of political opinion - Chinese national who claimed to have participated in pro-democracy demonstrations in Beijing in 1989 while a student at the Peoples’ University, Beijing - Two previous Tribunal decisions - Whether Tribunal erred in hearing third case de novo - Finding by Tribunal that appellant was not in Beijing in 1989 - Finding based on incorrect information as to university entrance qualification requirements - Failure of Tribunal to check information supplied by appellant and to seek readily available information - Whether the Tribunal failed to provide a fair hearing and substantial justice - Whether the Tribunal erred in law - Whether Tribunal member was affected by actual bias - Possibility of more favourable Ministerial decision.
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 followed.
Migration Act 1958 ss 416, 417, 420 and 476.NG398 of 1997
SUN ZHAN QUI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
JUDGES:WILCOX, BURCHETT and NORTH JJ
PLACE:SYDNEY
DATE: 23 DECEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NG398 of 1997ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SUN ZHAN QUI
AppellantAND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGES:WILCOX, BURCHETT and NORTH JJ
PLACE:SYDNEY
DATE: 23 DECEMBER 1997
THE COURT ORDERS THAT:
1.The orders made by Lindgren J on 6 May 1997 be set aside and, in lieu thereof, it be ordered that:
(a) the application for review be upheld;
(b) the decision of the Refugee Review Tribunal dated 1 April 1996 be set aside;(c)the application of the appellant, Sun Zhan Qui, for grant of refugee status be remitted to the Refugee Review Tribunal for further hearing and determination according to law; and
(d)the respondent, the Minister for Immigration and Ethnic Afairs, pay to the said appellant his costs of the application; and
2.The respondent pay to the appellant his costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NG398 of 1997ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SUN ZHAN QUI
AppellantAND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGES:WILCOX, BURCHETT and NORTH JJ
PLACE:SYDNEY
DATE:23 DECEMBER 1997
REASONS FOR JUDGMENT
WILCOX J: This is an appeal against a decision of a Judge of the Court (Lindgren J) dismissing an application by the appellant, Sun Zhan Qui, for review of a decision of the Refugee Review Tribunal. The Tribunal rejected his claim for recognition as a refugee pursuant to the Convention Relating to the Status of Refugees of 28 July 1951, as amended on 31 January 1967. The respondent to the appeal is the Minister for Immigration and Ethnic Affairs (“the Minister”).
The case is a disturbing one, both in relation to its particular facts and for what it says about the current Australian system of reviewing refugee decisions. The Tribunal decision under present challenge is the third decision on Mr Sun’s case made by the Refugee Review Tribunal and is said to be affected by actual bias.
The appellant’s arrival in Australia
The appellant is a Chinese national. He arrived in Australia at Cairns on 16 December 1993, having travelled on an Air Niugini flight from Port Moresby. He had no passport or other travel documents but carried a note reading “I am from China. I have to seek political asylum in Australia. Help me please”. Mr Sun was interviewed by David Yeomans, a senior inspector of the Department of Immigration and Ethnic Affairs (“the Department”). The content of that interview and Mr Yeomans’ subsequent actions are set out in a report he prepared that day:
“Pax interviewed. Pax claims to have destroyed and disposed of his travel doc (Chinese passport) in the transit lounge, Port Moresby a/p prior to boarding his flight - flushed down toilet. claims passport did not contain visa for A/a. Destroyed and flushed boarding pass after boarding aircraft. Claims lack of visa detected by airline check-in officer, however, after listening to pax’s story, the officer was ‘sympathetic to his plight’ and assisted in his boarding the aircraft. This claim is being investigated by local Air Nuigini (sic) Manager.
Pax claims his correct name to be Sun Zhan-Qui and correct dob to be 23.08.1971. For the past four years pax has been using the name Sun Jiang (dob 23.08.71) to avoid detection. Claims passport was in name Sun Jiang. Airline booking (Air Nuigini) in name Sun Mr J.
BACKGROUND
Pax fears reprisal for his participation in the 1989 ‘student democracy movement’. Claims to have been a student of economics at the uni of China in Beijing in 1989 and on the day of the 04 June massacre at Tiananmen Square marched with his class - claims to have been the class march organiser. Claims 2 days after the massacre he escaped Beijing and travelled by train to southern China where he lived and worked for three years. He assumed the name of Sun Jiang to avoid detection. He worked in a toy factory in Foshang, Guantong prov. His only family (parents) live in Guangchou city, some two hours drive from Foshang. Claims did not return to live with parents for fear of being traced. Kept in contact with them through a friend.
In early 1993 pax claims he illegally secured a Chinese passport through a visiting Hong Kong man (name not known) in name of Sun Jiang - $HK20,000. Passport contained a 3 mth PNG visit visa. In Apr 3 pax travelled to Hong Kong then flew (Air Nuigini) to Port Moresby, PNG. Befriended a Chinese businessman in PM whom he stayed with until his journey to Australia. Pax claims decided to continue on to A/a after hearing of the A/a government’s recent decision to grant pre-20 June 1989 Chinese PEPAE. Believed this showed the A/a/ govt to be compassionate.
Pax has limited baggage - two carry bags (mainly clothes and books). Baggage search conducted by customs. Nothing found which identified pax. In possess of a number of photographs (approx 20) of crowds of Chinese, army tanks, and graphic photos of dead and bleeding bodies. Pax claims the photos were taken by himself at Tiananmen Square.
No record visa issue or previous entry to A/a under either name. In view of lack of identification documentation and legal authority or right to enter A/a, entry refused. Ques of pax’s claims to political asylum to be assessed separately. Placed in s89 custody at Cairns watchhouse. Transfer to Villawood detention centre, Sydney to be arranged soonest.
Infringement notice served on carrier (Air Nuigini).”
As I understand the position, the infringement notice referred to in the last line of this report concerned the carrier’s action in apparently transporting Mr Sun to Australia without any travel document.
On the day of the interview, Mr Yeomans obtained from the Papua New Guinea authorities a copy of the Departure Card completed by Mr Sun on leaving Port Moresby. It showed the name “Jugi Sun”, “Jugi” being written in the line marked “Family Name” and “Sun” in the line marked “Given names”.
On the following day, 17 December, the Traffic Systems Manager of Air Niugini responded to the infringement notice by writing a letter to an officer of the Department in these terms:
“This passenger checked in normally and passed through Immigration Controls. (See PNG Immigration Card).
This, of course, indicated that the [sic] had a Passport in his possession and a PNG Visa.
The Check in Agent was interviewed, and is mystified as to why the Passenger claimed that he (the Agent) had allowed the Passenger through ‘out of sympathy’.
I find it unbelievable that this could have been the case, and I believe the Agent did not do this, as based on his past record, he is tough on Visas into Australia.
I attach an example where this Agent (Number 754) refused a passenger travelling as a Medical case with a Fractured leg, on the PX3060 on the 16th December, because their Transit time was FIVE minutes over that permitted. (See attached passenger record).
In addition, I attach another passenger, deleted from the PX060/15DEC93, by the same Agent, for the same reason - No Visa.
It is highly unlikely that he would allow a Chinese Refugee to board our aircraft.
As you can see from the attached Statutory Declaration, the Agent has stated that there was not only an Australian Visa in the Passport, but a New Zealand one too. His journey was to have taken him to NZ after 14 days.
If the Passport was forged, then it was highly likely that it was a forged visa as well.
This man lied to you from the start, and there would seem to be no substance to his stories. He has everything to gain by lying, and the Check in Agent would have everything to lose by acting in the manner described.
I find no indication that there is any substance in Mr. Sun’s story, and ask that unless you have any evidence to the contrary, to withdraw the Infringement notice.”
The statutory declaration referred to in the letter does not appear in the appeal papers. Nor, it seems, was it among the documents considered by any of the Refugee Review Tribunal members who later reviewed Mr Sun’s case.
Mr Sun was transported to Villawood detention centre in Sydney. On 23 December he applied for recognition of his status as a refugee. The ground of his application was that he had a well-founded fear of being persecuted in China for reasons of political opinion. Specifically, his fear was said to arise out of his involvement in pro-democracy activities in China - in Beijing between April and June 1989, and in Foshan between June 1989 and April 1993 - and out of the response of the Chinese authorities to such activities.
On 24 January 1994 Mr Sun was interviewed, through an interpreter, in connection with his application for refugee status. In this interview he said he was a student at the People’s University of China in Beijing from September 1988 to June 1989, taking the first year of a four year course for the degree of Bachelor of Economics. He was asked whether he sat for the national entrance examination to enter the university, and his score. He replied “Yes. 819”. The interviewer asked Mr Sun to “give me a run down of what exactly you did in 1989” in connection with the student pro-democracy movement. Mr Sun then referred to events on 18 and 19 April, 27 April, 10 May and 4 June 1989. In relation to the last date, he said:
“On 4/6/89 I was at Tiananmen Square with approx. 1000 students we retreated 6 blocks way along Chang An Street as tanks rolled along and threatened us. When the smoke bombs cleared up we went back to the scene and some of my colleagues were killed. I was a witness and took many photos.”
The interview went on to deal with Mr Sun’s subsequent movements and his reason for fearing persecution if returned to China.
On 11 February 1994 a delegate of the Minister decided Mr Sun was not a refugee. Five days later, Mr Sun filed an application for review of that decision by the Refugee Review Tribunal.
The Fordham Tribunal decision
For the purpose of considering Mr Sun’s application for review, the Tribunal was constituted by Roger Fordham. Mr Fordham conducted a hearing at which Mr Sun was represented by a solicitor. Mr Sun gave evidence through an interpreter. On 14 May 1994 Mr Fordham handed down a decision affirming the decision of the delegate that Mr Sun was not a refugee under the Convention.
In his reasons for decision, Mr Fordham said there were “many aspects of (Mr Sun’s) account of his departure from the PRC (the People’s Republic of China), his transit through Hong Kong and New Guinea that are implausible”. He was not prepared to accept that a check in officer would allow a passenger to board an aircraft for Australia “in full knowledge of the lack of a visa and knowing the consequences for him personally”. He thought Mr Sun’s account of his time in Port Moresby was “vague and without detail”. He went on:
“The Tribunal concludes that this part of the Applicant’s statement is either fabricated or given in such a way as to deliberately conceal details. The Tribunal does not attempt to determine why the Applicant’s account of his journey from Hong Kong, through Port Moresby to Australia was fabricated. At one point the Applicant openly stated that he did not want to provide the name of his benefactor in Boroko, New Guinea because he did not wish to implicate him. The Tribunal accepts this and equally accepts that the Applicant may have reasons to have fabricated parts of this account which are equally well-intentioned.
However, this aside, none of the material in this part of his account is Convention-related nor does it have any relevance to his claim to a well-founded fear of persecution for a Convention reason.”
Mr Fordham went on to observe that “lack of credibility in one section of the Applicant’s claims should not bias the Tribunal against all other claims” and to accept a specific submission made to him that any lack of credibility in relation to Mr Sun’s mode of departure from China “does not detract from his credibility on those earlier events, but may and should be explained in some other way”. He then made a finding that has subsequently assumed some importance:
“The Tribunal accepts the Applicant’s accounts of his involvement in prodemocracy activities in Beijing from 15 April 1989 to 5 June 1989 and his account of his prodemocracy activities in Foshan as credible.”
After referring to the issues that need to be addressed in considering a claim of refugee status, Mr Fordham said:
“The Tribunal has accepted that the Applicant was a student in Beijing at the time of the Tiananmen Square massacre and also accepts that he was involved as a participant together with the many thousands of other students in rallies and demonstrations at that time. The Applicant has provided an eyewitness account of the massacre on June 4th and 5th in Tiananmen Square. He has also stated that he fled Beijing immediately afterwards and went into hiding in Foshan.
The Applicant saw for himself the ruthless quashing of the demonstrations by armed soldiers and tanks but did not have the opportunity to experience at first hand the actions of the authorities in Beijing after the event or the level of involvement in the demonstrations that gave people cause to fear persecution. This being the case, the Tribunal accepts that the applicant has fear. That fear was further demonstrated, as his representative pointed out in his submission, when he terminated his studies and fled to Guangdong province. However, this all occurred immediately after the Beijing massacre of June 5th 1989 in a state of panic and uncertainty.” (Emphasis added)
Mr Fordham then considered whether Mr Sun’s fear of persecution was well-founded. He determined it was not; his reasons being Mr Sun’s relatively minor role in the pro-democracy movement and information as to the current position within China obtained from the Department of Foreign Affairs and Trade (“DFAT”) and the United States Department of State (collectively “country reports”). In the course of this consideration, Mr Fordham indicated his acceptance that Mr Sun “carried news of proposed rallies and demonstrations to his class of thirty students and ... encouraged and went together with them on two or three occasions”. Mr Fordham went on to discuss the effect of Mr Sun’s subsequent activities at Foshan.
“He claims that he and friends met to discuss political matters and that he pasted articles of a political nature from magazines for the public to see. He makes no claim to having been discovered doing this nor does he claim he was ever investigated for having done so. The Tribunal concludes these articles could be readily obtained in his area in the same way he obtained them and thus [as] the general information in them [was] already known this action would not give him any real significance. Further there is no evidence to suggest that the authorities were aware of his involvement in this activity. The Tribunal finds that the risk of persecution from this action is indeed remote and insubstantial.”
Referring to Mr Sun’s claim that his parents had been questioned about his whereabouts, Mr Fordham said this did not, of itself, indicate a chance of persecution:
“It does indicate an infringement of the family’s right to privacy but the Tribunal concludes this is an example of the general monitoring activities of the Chinese authorities rather than that he faces persecution for his involvement in the prodemocracy activities of 1989. It is a fact that he has been absent and unable to be located for some considerable period. It is accepted that the authorities may wish to question him concerning his departure from Beijing but, as has already been stated the Tribunal does not accept that his actions at that time provide him with grounds for a well-founded fear of persecution even if the authorities were aware of them.”
Mr Fordham said Mr Sun “may face questioning and some action for his illegal departure from the PRC” but he found “this would not be convention-related as it is an offence to illegally depart from the PRC”. His conclusion was expressed in these words:
“The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant[’s] claims and particular circumstances and measured them against the independent evidence before it the Tribunal finds that the fear is not well-founded as there is no real chance of persecution and the consequences the Applicant fears are both remote and insubstantial.”
The passport application
In his Reasons for Decision the primary Judge recounted what happened after Mr Fordham’s decision. His account is not challenged, so I adopt it:
“Mr Sun did not apply for review of the Fordham Decision at that time. Apparently, he sought Ministerial intervention. When this was unsuccessful, arrangements were made for him to leave Australia. For that purpose, he needed a passport. At first he refused to sign a form of application for a passport for lodgement by the Department with the Chinese Embassy, but some time later, on 4 July 1994, he partially completed such a form and provided it to the Department. On the form, Mr Sun filled in the spaces provided for his name, sex, date and place of birth, marital status and the names of his parents. In the space provided for ‘Brief history of applicant’ he wrote (as translated):
(a)Previously in China.
(b)April 1993 - December 1993 PNG.
(c)93-94 in Australia.
However, Mr Sun did not provide details of his home address in China, previous passport, occupation, work address or description.
On 8 July, the Department forwarded the form to the Embassy of the People’s Republic of China in Canberra together with a covering letter requesting the Embassy’s assistance in the issue of a travel document in order that Mr Sun might ‘return to China as soon as possible’. The letter included the following:
‘In addition to the information stated in his passport application Mr Sun has made the following claims regarding his origins and identity:
* Born 23/08/71 in Guangzhou, China.
* Home address: 159 Hai Zhu Rd., Guangzhou.
*His only family members are parents: SUN Hui, 58 years of age (father) and LI Nai, 54 years (mother). Both reside at the address above.
*Previously worked in a toy factory in Foshang, [sic] Quantong province.
*Departed China on or about 21 April 1993 for Hong Kong using a passport in the name of SUN Jiang.’
On 16 August 1994 a Mr Ciu of the Consulate of the People’s Republic of China telephoned a Mr Browne of the Department and advised him that it had not been possible to identify Mr Sun from the information he had provided on his application form.
Mr Sun elected not to supplement the information. Instead, on 12 October, he lodged an application dated 7 October for the issue of a ‘protection visa (866)’. ‘Protection visas’ had been introduced by the Migration Reform Act 1992 which had amended the Act in this and other important respects with effect on and from 1 September 1994. In the statement of grounds in his application, Mr Sun referred to his fear of persecution ‘as already documented’; asserted that his previous application should not have been rejected and that the Fordham Decision was ‘legally flawed’; explained that he had been unable to apply to this Court for review of the Fordham Decision because he had been ‘held in detention’ at the Immigration Detention Centre at Villawood and because he had lacked the means of funding legal assistance; and finally claimed that the failure of the Chinese authorities to issue a passport to him pursuant to his application dated 4 July had amounted to a refusal by them to provide him with protection, and that this refusal itself supported his claim to be a refugee. On 24 November, the Minister’s delegate refused Mr Sun’s application.”
The Ransome Tribunal decision
Mr Sun applied for review of the 24 November decision. For the purpose of that application, the Tribunal was constituted by Kay Ransome. At a hearing on 1 May 1995, Mr Sun was represented by a migration agent, Marion Le. Once again, he gave evidence. On 24 May 1995 Ms Ransome announced a decision that Mr Sun was not a refugee and affirmed the delegate’s decision of 24 November 1994 not to grant him a protection visa. After referring to the Tribunal’s earlier decision and the circumstances surrounding the passport application, Ms Ransome expressed this conclusion:
“The Tribunal is not satisfied on the material before it that the applicant has been refused a passport by the Chinese authorities. It is clear from the departmental file that before considering whether a passport will be issued to the applicant, the Chinese Consulate requires further information from the applicant in order to verify his identity. The applicant states that he has provided all of the information which he can provide in order that his application for a passport be processed. It is clear from the departmental records that that is not the case. Indeed, a departmental minute contained on the file details the information required.
A further indication that the matter is not finalised as far as the Chinese Consulate is concerned is that neither the applicant nor the department has received any notification from the Consulate that a passport has been refused.
The applicant’s adviser has stated that by refusing to issue the applicant a passport the Chinese authorities have effectively denied him protection. She also states that if he were to return to China the applicant would be interrogated and persecuted. This second statement seems to relate to the matters covered in the applicant’s first application which, as stated above, are not before this Tribunal for consideration. As to the first statement, the Tribunal can only reiterate that on the facts as presented to it, there is no indication that the applicant has been refused a passport.
Until such time as the applicant provides to the Chinese Consulate the information required there is no evidence before the Tribunal upon which it could decide that he has been refused a passport. Accordingly, there is no evidence before the Tribunal upon which it could make a finding that the applicant is a refugee and the decision under review must be affirmed.”
The earlier Federal Court proceeding
On 22 June 1995 Mr Sun filed an application in this Court for review of both Tribunal decisions. In relation to Mr Fordham’s decision, review was sought pursuant to the Administrative Decisions (Judicial Review) Act 1977. The application was out of time but Hill J extended time pursuant to s 11(1)(c) of that Act. In relation to Ms Ransome’s decision, the application was made pursuant to s 476 of the Migration Act 1958. That section permits review of decisions of the Refugee Review Tribunal (among other bodies) on any one or more of seven specified grounds, one of which is “an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision”: see s 476(1)(e).
The two applications came before Beaumont J for hearing on 23 August 1995. The Minister accepted that Ms Ransome had erred in law and the parties joined in asking Beaumont J to set aside her decision and remit “the matter” to the Tribunal “for fresh hearing in accordance with law”. The question then arose as to what action should be taken in relation to Mr Fordham’s decision. Beaumont J suggested the application for review of that decision might stand over pending the outcome of a fresh hearing of the remitted matter, but both parties opposed this because of the terms of s 416 of the Migration Act. That section reads:
“416. If a non-citizen who has made:
(a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
(b)applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;
makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:
(c)is not required to consider any information considered in the earlier application or an earlier application; and
(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.”
Presumably the concern was that the new Tribunal might adopt Mr Fordham’s decision and thus infect a new decision with any error inherent in the earlier.
Because of s 416, Beaumont J agreed to hear the application to review the Fordham decision. However, he suggested only one question should be dealt with at that stage:
“Whether having regard to the material before the Tribunal the first decision of the Tribunal is so unreasonable that no reasonable person could have made it?”
This is a ground of review under the Administrative Decisions (Judicial Review) Act (see s 5(1)(e) and s 5(2)(g)), but not under the Migration Act (see s 476(2)(b)).
The parties accepted the suggestion of Beaumont J and his Honour made an order for the determination of that separate question. After hearing further argument, Beaumont J reserved judgment. A few days later, on 29 August 1995, he delivered Reasons for Judgment in which he referred to the material that had been before Mr Fordham, Mr Fordham’s decision and the relevant case law. His Honour observed that, “(b)y its nature, it is usually difficult to make out a case of ‘manifest unreasonableness’ on the part of an administrative decision maker”. However, he said, “whilst it is not appropriate that I now express a final view on the question, the applicant has nonetheless demonstrated at least that it is arguable that the Tribunal’s decision was manifestly unreasonable”. He set out reasons for this view.
Beaumont J explained why he thought it inappropriate to express a final view about unreasonableness. But for s 416, he said, it would have been inappropriate for the Court, having already remitted the matter to the Tribunal, “to have embarked upon the present hearing”. However, s 416 created a problem. Notwithstanding this, his Honour said:
“... considerations of principle and convenience point to my doing no more at this stage than expressing the provisional view on the first decision that I have expressed. In the scheme now contemplated, the whole matter will be returned to the Tribunal for fresh consideration. If necessary, at some later stage, the jurisdiction of the Court may be invoked for the purpose of the Court giving a final answer to the question posed in the separate question.”
In the result, Beaumont J did not give a final answer to the separate question.
The Smidt Tribunal: hearing de novo
On the day following Beaumont J’s decision, Walsh James, the solicitors acting for Mr Sun, wrote to the Deputy Registrar of the Refugee Review Tribunal seeking an expedited rehearing of Mr Sun’s second application. They stated their client “is presently suffering from acute depression and post traumatic stress syndrome” and enclosed a report from Dr Bruce Stevens, a clinical psychologist, dated 7 August 1995. The report was based on a three hour consultation conducted that day in which Dr Stevens questioned Mr Sun and subjected him to various tests. Dr Stevens reported that, initially, Mr Sun “was a little nervous and appeared to be emotionally flat. At times he was close to tears. I thought that he was genuine and direct in his replies”.
The report set out some personal information and recounted statements made by Mr Sun concerning his participation in the pro-democracy movement. This included an account of events at Tiananmen Square on 4 June 1989 where Mr Sun claimed to have witnessed tank attacks and the Army shooting at students, and to have taken photographs that he showed Dr Stevens. Reference was also made to subsequent events.
Dr Stevens expressed the opinion that Mr Sun was suffering from chronic post traumatic stress disorder. He explained that the “essential feature” of this condition “is the development of characteristic symptoms following exposure to an extreme traumatic stressor”. He gave examples of the type of experience that might trigger the disorder including experiencing or witnessing military combat or violent personal assault, or seeing a violent death. He said:
“Symptoms usually begin within the first three months after the trauma, although there may be a delay of months even years before symptoms appear. Duration of the symptoms varies, with complete recovery occurring within three months in approximately half of the cases, with many others having persisting symptoms lasting for longer than 12 months after the trauma.”
Dr Stevens set out the diagnostic criteria he had used in determining that Mr Sun had a “severe condition” of post traumatic stress disorder. He related some of these criteria directly to the detail of statements made by Mr Sun about events in Beijing in 1989, statements that Dr Stevens obviously accepted as genuine.
Dr Stevens had submitted Mr Sun to a test called “Basic Personality Inventory” that consists of a 240 item questionnaire. Dr Stevens reported:
“He scored in the clinical range of >70 for the scales of Hypochondriasis, Depression, Persecutory Ideas, Anxiety, Thinking Disorder, Social Introversion, and Deviation. The profile is that of a very distressed person. Although he scored highly on two scales associated with psychosis, I think at the level of these scales it is more likely associated with the trauma because the Depression and Anxiety scales are very high. The Depression scale was the highest, with a score in the highest range of very severe depression. He is psychologically isolated, with a high score on Social Introversion which indicates that he is more vulnerable to stress because he will tend to try to manage on his own rather than seek support from others. His Self Depreciation score was lower than the Depression, although on the margin of the clinical range, it may be indicate less chronic vulnerability to depression and perhaps a depressive condition relating to his present circumstances.
Aaron Beck, MD, has designed the Beck Depression Inventory with 21 questions. These are weighted and scored from 0-3. The results are scored:
1-10 Normal range
11-16 Mild mood disturbance
17-20 Borderline condition
21-30 Moderate depression
31-40 Severe depression
>40 Extreme Depression
Mr Sun scored 48 which is in the highest range. He also meets the criteria for a Major Depressive Episode with the following symptoms present for the last two weeks, and possibly a lot longer: depressed mood, diminished interest and pleasure in normal activities, weight gain in the last couple of years, insomnia, fatigue, feelings of worthlessness, diminished ability to concentrate, recurrent thoughts about death and suicidal ideation. He meets all the criteria though the weight gain may be related to better eating at the camp and not a depressed mood. He still meets 8 of the 9 when only 5 is necessary for the diagnosis.”
Dr Stevens concluded:
“Mr Sun is very distressed and in an apparently deteriorating condition. He clearly meets the criteria for Post Traumatic Stress Disorder and a Major Depressive Disorder. He may also have an anxiety condition as well. I would recommend immediate treatment for the depression. He should see a GP and possibly a psychiatrist and be assessed for non-toxic antidepressant medication. He should also see a counsellor with experience in treating PTSD. His present situation of being detained appears to be contributing to his emotional problems. However with a change in circumstances and professional help he should have every chance of a full recovery.”
So far as the evidence discloses, Dr Stevens’ views have never been challenged.
Following Walsh James’ letter, the remitted review was allocated to a Tribunal member, Roslyn Smidt. Ms Smidt decided against using s 416 of the Act. She thought the better course would be to consider de novo Mr Sun’s claim for refugee status. In argument before us, Mr Michael Lawler, counsel for Mr Sun, criticised this decision. He submitted that, pursuant to s 416, Ms Smidt should have accepted Mr Fordham’s findings concerning Mr Sun’s activities in China, and that Mr Sun had a fear of persecution on account of his political opinion, and confined herself to a re-examination of the question whether that fear was well-founded.It is convenient to say immediately that I reject this argument. Ms Smidt ought not be criticised for deciding to consider the case de novo.
There is a question whether s 416 may be used in the piecemeal fashion suggested by counsel. That question turns on the meaning of the word “decision” in par (d) of the section. The word is not defined in the Act. If “decision” in s 416(d) refers only to the final decision to grant or refuse recognition of a person’s claim of refugee status, it is obviously not competent for a subsequent Tribunal to have regard to, and take to be correct, only a particular factual finding made on the way to reaching that decision.
The use of “decision” in s 417 perhaps supports this suggested construction. Section 417(1) empowers the Minister to “substitute for a decision of the Tribunal ... another decision, being a decision that is more favourable to the applicant”. The “decision” referred to in this subsection would appear to be the final decision on the application, not a finding of fact. On the other hand, the word “decision” in s 416(d) is linked to the discretion given to the Tribunal by s 416(c) not “to consider any information considered” in any earlier application. There is much to be said for the view that par (d) is speaking of the earlier Tribunal’s “decision” about that information; that is, the Tribunal’s relevant finding of fact.
I do not find it necessary to reach a view about the availability of s 416 to Ms Smidt. Even if it was open to her to take the suggested course, she was not bound to do so. Section 416 conferred a discretion; it did not impose any obligation. Especially having regard to the remarks of Beaumont J, there was good reason for starting again. How to conduct the de novo hearing, given Mr Sun’s psychological condition, was another question.
The Smidt Tribunal: preliminaries
In the event, Ms Smidt conducted an oral hearing on 18 December 1995. However, much work was done before that date. It seems Ms Smidt decided to investigate whether Mr Sun was in fact a student in Beijing in 1989, as he had always claimed. On 21 September 1995 she made an internal Research Request for information about the subjects in which an Economics student would need to enrol at the People’s University of China and “what particular requirements there are for students enrolling from other provinces”. She explained in her memo:
“The applicant, who is from Guangzhou, claims he enrolled to study economics at the Peoples University of China in Beijing in September 1988.
I have checked the NOOSR Publication on higher education and it appears that graduating middle school students normally enrol in the universities in their own province, although enrollment elsewhere is possible ...”
The acronym “NOOSR” stands for the National Office of Overseas Skills Recognition, a unit of the Commonwealth Department of Employment, Education and Training.
On 4 October 1995 David Mackey, a Tribunal research officer, wrote to an officer of the Education Section of the Consulate of the People’s Republic of China in Sydney as follows:
“I am seeking information regarding People’s University in Beijing.
Could you please forward a course outline for the economics degree and the entrance requirements necessary for admission to the university for a Chinese national.
I would also like to know if there are any special provisions or quotas for persons seeking admission to the People’s University from other provinces of China?”
On the same day Mr Mackey wrote to the university itself. He sought the same information, but added an inquiry as to the existence of “any special requirements for graduates from other provinces, such as Guangdong”.
In early October, on Ms Smidt’s instruction, the Tribunal issued a summons requiring Ms Le to produce the negatives of the photographs Mr Sun was carrying when he entered Australia. They were produced and, on 20 October 1995, referred by Paul Smith, a Tribunal officer assisting Ms Smidt, to the Document Examination Unit of the Department. Some reliance is placed on the terms of Mr Smith’s letter, so I will set out the relevant part, emphasising a sentence highlighted in Mr Lawler’s submission to us.
“The Tribunal has before it an applicant who claims to have participated in many of the demonstrations which were held in Beijing in April/June 1989 and to have been present in Tiananmen Square on the night of 3 June 1989. He claims to have taken the enclosed photographs himself during that period. The Presiding Member has reason to question whether this applicant attended any demonstrations or was present in Tiananmen Square on 3 June 1989 and therefore has doubts regarding the claim that he personally took these photographs during that period.
The Tribunal has in the past received photographs that have been copied from magazines and video tapes taken from television programs.
We would be grateful for any comments you can offer regarding these photographs and negatives, including, if possible, whether they were taken at the scene.”
Mr Lawler’s suggestion is that there was not yet anything before Ms Smidt to cast doubt on Mr Sun’s claim of participation in the Beijing demonstrations, a claim expressly accepted by Mr Fordham; this letter therefore reveals actual bias.
On 14 November Patricia Moss, of the Document Examination Unit, reported on the three black and white photographs and six colour photographs forwarded to the Unit. These photographs showed people engaging in a protest march, with flags and banners, bodies lying on the ground or across a bicycle and tanks. The photographs included one of an apparently moving tank knocking down a barricade behind which were people. In relation to all the photographs, Ms Moss said “There are no half tone dots to indicate that the photographs were taken from a newspaper or magazine, nor is there any indication of a pixel based video image”. She said the photographs had been taken at different times of the day, one at night. Ms Moss thought some colour photographs had been taken “from an elevated position”, the others at street level. She said of the colour photographs that the “varying fields of view displayed in the photographs indicate that the camera used probably had a zoom lens attached”. Ms Moss was of the opinion that none of the photographs were reproductions from newspapers, magazines or video and all of them appeared to have been taken “at the various scenes”. Ms Moss suggested “that the applicant be asked to describe the type of camera equipment used and the position from which the photographs were taken”. She commented:
“Although I have stated that the photographs are not reproductions, this does not indicate that the applicant was the photographer. A subjective appraisal of the negatives and photographs indicate(s) that the photographer has had some experience, possibly in journalism.”
Mr Sun was subsequently asked about the camera used to take the photographs. He was not asked about his experience as a photographer.
On 6 October 1995, at Ms Smidt’s request, Mr Smith wrote to the Onshore Refugee Processing Unit of the Department seeking a list of visitor visa applications issued at Port Moresby “to all Chinese, Taiwanese and Hong Kong male nationals in the two months prior to 16 December 1993”. On 17 October Mr Smith was advised that this list “runs for approx. 88 pages”. He passed this information to Ms Smidt. She cancelled the request, presumably because of the length of the list. Apparently nobody thought of searching the 88 pages for specific names, such as that used on Mr Sun’s Papua New Guinea departure card, the name allegedly shown on his false passport (Sun Jiang) or his true name. As the Department’s information was stored on a computer data base, a search could have been quickly and easily effected. It will be recalled that, on 16 December 1993 in Cairns, Mr Yeomans had negatived the issue of a visa in the name of Sun Jiang or Sun Zhan Qui, apparently by undertaking a computer search against those two names. As was demonstrated by a search made after Ms Smidt’s decision, a specific name search made on her behalf would also have negatived the issue of a visa in favour of “Jugu Sun” or “Sun Jegu”, an issue Ms Smidt assumed in her decision.
Another matter raised in early October was whether Mr Sun would be obliged again to give evidence. On 9 October Walsh James wrote to Mr Smith at the Tribunal enclosing an eight-page document entitled “Applicant’s Preliminary Submissions”. This document dealt with two main matters. The first was the alleged inability of the PRC Consulate to issue a passport to Mr Sun in 1994 because of lack of confirmation of his name and address. Ms Ransome had recorded the Consulate said “the home address provided by the applicant does not exist”. In relation to this, the submission pointed out the address given to the Consulate (as the address of Mr Sun’s parents) was 159 Hai Zhu Road, Guangzhou. The submission said one of Mr Sun’s legal representatives was acting in an unrelated matter for a migration agent who had a contact in Guangzhou. The contact had obtained a map of Guangzhou, which showed Hai Zhu Road, and had taken photographs of the building at 159 Hai Zhu Road. One photograph showed a plaque beside a doorway with the name “Hai Zhu” in Chinese characters and the number 159. The Chinese characters on the plaque matched those of the road on the map. The submission proceeded:
“The word ‘Hai’ means ‘Sea’. The word ‘Zhu’ means ‘Pearl’. Thus, ‘Hai Zhu Road’ translates in English as ‘Sea Pearl Road’. The Chinese characters circled on the attachment C and appearing on the plaque in Photograph IV are the characters for Sea and Peal [sic], ie for Hai and Zhu. The third character means ‘South’. Hai Zhu Road, as can be seen from the map, is a main road and is sometimes broken into three parts (North, Middle and South) as shown on the map. The street numbers run consecutively for the whole length of the street. The map extract has been annotated to show the meaning of the Chinese symbols.
Hai Zhu road does exist ... Number 159 Hai Zhu Road does exist ... The claim by the Chinese official that the address does not exist is false. That false claim has led the Department and the RRT to wrongfully draw adverse conclusions about Mr Sun.” (Original emphasis)
After referring to other matters, the submission argued:
“The only conclusion reasonably open to the Tribunal is that the Chinese Government was unwilling to permit Mr Sun to return, and that accordingly he is unable to return to his place of habitual residence. On either view he is a refugee.”
In order to put the matter of the address in perspective, I mention that the address given to the Consulate lacked the word “South”. So it would not have been immediately apparent to the Consulate which of the three parts (North, Middle or South) was intended. This perhaps undermines the assertion in the submission that the claim of the Chinese official was false. However, on the other side of the case, the point has been made that, by this date (almost six months before her decision) Ms Smidt had a complete address for Mr Sun’s parents; yet, without further inquiry, she was to proclaim herself “unable to determine his identity” and to use confusion about the address as “a clear implication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status”.
Another matter raised in Walsh James’ submission was the appropriate course to be taken. The submission contained references to the judgment of Beaumont J and offered the view “that the Tribunal will need to do no more than consider the material attached to these preliminary submissions ... in order to be able to make a favourable decision on the papers pursuant to s 424(1)”. Section 424(1) of the Migration Act provides:
“424(1)If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decisions or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.”
In their covering letter of 9 October, Walsh James expanded on this matter. They argued the real issue was the inferences that ought to be drawn in relation to Mr Sun’s claims, from the other evidence before, or available to, the Tribunal. They went on;
“It would be legally embarrassing and unnecessarily hazardous for a person in a precarious mental state for (sic - like) Mr Sun to be exposed yet again to an examination of the veracity of his story - a story that he has told consistently since he arrived in this country about two years ago.”
On 11 October Mr Smith responded to this letter. Amongst other things, he indicated that “the Presiding Member (Ms Smidt) has also asked me to advise you that she will be conducting a full de novo review of Mr Sun’s case.” The letter did not expressly deal with the question of Mr Sun giving evidence or his psychological condition.
On 29 October Ms Le wrote to Mr Smith, primarily in relation to the photographs. But she also dealt with the question of Mr Sun’s further appearance to give evidence:
“Having regard to the legal submissions prepared at my request on my behalf and sent to the Tribunal by the solicitors who appeared for Mr Sun in the Federal Court, I am surprised that the Tribunal has apparently decided that the matter cannot be resolved favourably on the papers and has decided that there will be a full de novo hearing in this matter. Perhaps I have misunderstood the Tribunal’s intentions in this regard?
The Tribunal has been provided with a report by Dr Bruce Stephens [sic] to the effect that Mr Sun is suffering from extreme depression and acute Post Traumatic stress disorder. Neither the Minister nor the Tribunal has sought to dispute that assessment.
I have visited and spoken to Mr Sun on a number of occasions since that report was prepared. I am concerned that Mr Sun’s condition continues to deteriorate and note that he is now on medication.
After speaking to Mr Sun and accepting his perspective as valid in the light of further medical advice I have formed the view that it is not in my client’s interests to persuade him to appear at a hearing and yet again recount in detail his experiences in China. Mr Sun has asked me to notify the Tribunal, as he so requested we notify the Immigration Review Tribunal in relation to his application for a Bridging visa, that he does not wish to appear again to give evidence.
In so notifying the Tribunal, I wish to also note that Mr Sun has already been subjected to lengthy interviews by the Departmental officers and delegate and by the Tribunal, particularly by the Tribunal as constituted by Mr Fordham.
The tapes of those interviews are held by the Tribunal and a transcript of the hearing before Mr Fordham is also available.
Mr Sun is content that the Tribunal, in re-considering his application, proceed on the basis of the evidence given by him before the Tribunal in May, 1994 and also in the written submissions made by him and on his behalf throughout the consideration of his case before the Department, the Tribunal, the Minister and the Federal Court.
I would be pleased to receive notice of:
(a)Any matters which the Tribunal may consider adverse to Mr Sun’s application so that we may comment on them, and
(b)Any documents which the Tribunal identifies as relevant to a determination of Mr Sun’s application so that we may consider these.
I wish to have the opportunity of calling witnesses if the Tribunal decides that a favourable determination on the papers is not possible and a Hearing is offered Mr Sun.”
Mr Smith responded to this letter on 3 November confirming that “the Tribunal will be conducting a full de novo members review of Mr Sun’s case”. The letter also said:
“The Presiding Member notes that Mr Sun does not currently wish to attend another hearing of the Tribunal. Nonetheless, if, after considering all the documentary evidence before her she is unable to make a favourable decision in Mr Sun’s case, Mr Sun will be invited to attend a hearing, at which time he may decide whether he wishes to attend. You and your client will, of course, be given an opportunity to comment on any adverse material which may be taken into account when determining his application. The Presiding Member will consider any request for witnesses to appear at a hearing to give evidence on Mr Sun’s behalf.”
This was not the end of discussion about Mr Sun’s attendance. On 29 November Ms Le again wrote to Mr Smith confirming her earlier statements “regarding the fragility of Mr Sun’s psychological health”. She said:
“He is now on medication to relieve some of his stress but feels stress at the thought of having to attend another hearing. He believes that he has nothing further to add to his case and believes that he may break down in another hearing.
I would like to request the Tribunal member to give us details of the questions she would like to put to Mr Sun ie Would the Tribunal Member please identify the aspects of the case which are causing her difficulty in arriving at a decision and also any adverse material she may have before her. This would assist me in my discussions with Mr Sun.
Mr Sun is also wanting to know what the Tribunal’s reaction to the photographs provided has been - ie to the photographs he took in China and also to the photographs of his home address.
I am conscious that the Tribunal Member has requested a Hearing because she believes she is unable to reach a favourable decision on the papers. I hope that the aspects causing concern could be addressed by further paperwork given the state of Mr Sun’s mental health.
I stress that I am anxious to co-operate with the Tribunal in every way to give my client maximum support.”
At one stage the proposed hearing date was 4 December but it was put back to 18 December. On 8 December Mr Smith wrote a long letter to Ms Le. It opened:
“The Presiding Member has asked me to again invite Mr Sun to attend an oral hearing at the Tribunal as she has a number of concerns regarding the credibility of claims Mr Sun made to the Department and the Tribunal, as previously constituted, which she believes can best be addressed at an oral hearing of the Tribunal.
Some of the evidence Mr Sun has provided regarding the events in which he participated in 1989 differs in a number of ways from accounts of the same events contained in publications available to the Tribunal.”
The letter went on to compare some statements made by Mr Sun concerning events between April and June 1989 with accounts of those same events in some published works. It also dealt with other matters that had recently been discussed:
“The Presiding Member would also like the opportunity to clarify other aspects of Mr Sun’s case.
For example, she would also like to discuss his stay in New Guinea. Mr Sun claims that he entered New Guinea using a passport issued in the name of Sun Jaing, born 23 August 1971 and remained in New Guinea from late April to 16 December 1993. However, the departure card filled in by Mr Sun when he left New Guinea, indicates that he was using a passport in the name Jugu Sun, date of birth 1 October 1961 and that he spent only 3 weeks in New Guinea.
The Presiding Member would like to discuss the photographs which Mr Sun provided to the Tribunal. For example, she would like to know what kind of camera Mr Sun used to take these photographs and more about the circumstances in which the 4 June 1989 photographs were taken.
The Presiding Member would also like to discuss the situation at the People’s University of China on the morning of 4 June 1989 and Mr Sun’s decision to leave Beijing and the group which he claims to have formed while working in Guangzhou.
You have also asked for the Tribunal’s reaction to the photographs of a house in Guangzhou provided by Mr Sun. The Presiding Member notes that these pictures were taken by an unnamed person who apparently did not ascertain who actually lived at the house in question. She also notes that [the] passport application form completed by Mr Sun and forwarded to the Chinese authorities contained only his name, date of birth, the names of his parents and details of his stay in New Guinea and Australia. Mr Sun failed to answer questions asking for his addresses in China or details of his personal background, although some of these details were provided in an accompanying letter from the Department.
For these and other reasons the Presiding Member would like Mr Sun to reconsider his decision to attend an oral hearing at the Tribunal.
The Presiding Member is mindful of Mr Sun’s state of mind and would be happy to consider any advice that you or those attending to his welfare at Villawood can offer on ways to ensure his attendance at a hearing does not increase his stress.”
Notwithstanding these matters, Mr Sun determined he would not give evidence. On 17 December he wrote (or, at least, signed) a long letter saying “I really do not want to talk about the past to this tribunal again”. He gave a number of reasons. I need not set them out; it is sufficient to say they indicate a lack of confidence in the open-mindedness of the Tribunal. He appended a note dealing with two matters. First, he said he filled in the departure card “just to make it look like a filled card not an empty card. The information on the card are nothing to do with my real identification”. Secondly, he identified the camera used to take the photographs as a Chinese made, Hong Mei camera.
The Smidt Tribunal: the hearing
Mr Sun attended the hearing by Ms Smidt on 18 December, but he declined to answer any questions. Ms Le produced Mr Sun’s letter and note and presented a 14 page submission, apparently prepared by her, dealing with the matters raised in Mr Smith’s letter of 8 December. The submission included some personal observations about Mr Sun’s psychological health and attitude to the Tribunal. She said:
“9.One of the major contributing factors to Mr Sun’s present state of health is the perceived bias of the Tribunal against him. The saga of the photographs and negatives was disturbing particularly when a subpoena was issued and no guarantee of return of the photographs/negatives was (initially) forthcoming. Further, the apparent unwillingness of the Tribunal to seek out (or ask Mr Sun’s adviser) to seek out a map of Guangzhou and allow him to show where his parents’ home is located is, it appears to Mr Sun, now compounded by the fact that the current Member questions whether the very streets of Beijing he named exist. This will be addressed later in the submission. It is unfortunate that the Member did not check the Chinese characters/Mandarin/Cantonese transcriptions before questioning Mr Sun’s credibility again in this way. Other issues of perceived bias will be addressed later in the submission. On the face of the adverse material presented in the letter of 8 December, 1995, it certainly seems that the Tribunal has been highly selective and biased in its choice of material given that Mr Sun can only tell what he experienced and not access a library or other scholars to refute the secondary sources presented by the Tribunal. I am aware, of course, that the Tribunal does have an obligation to put adverse material to the applicant even though Members have access to supporting material. The dilemma for the adviser is whether the Member will access supporting material or not ...
10.Legal advice offered to me is that were these Court proceedings the Member would be asked to disqualify herself. Given that these are Tribunal Hearings operating under a different modus operandi I can only note the advice and place it on the record to protect myself and my client.”
The reference to the streets of Beijing arose out of a comment in Mr Smith’s letter of 8 December that Ms Smidt “could find nothing which resembled the street names mentioned by Mr Sun on the map of Beijing held in the Tribunal library, except for Chang An Boulevard”. Apparently, the problem arose because of the difference between the Cantonese and Mandarin forms of the names. The written submission was accompanied by a map on which Mr Sun had marked the points where he took the photographs. Ms Smidt accepted this resolved the difficulty mentioned on 8 December.
The submission went on to refer to numerous published accounts of the events of April-June 1989 and to suggest some accounts contradicted aspects of accounts in publications relied on by Ms Smidt, but were consistent with Mr Sun’s version of events. There were also submissions about the Chinese government’s attitude to participants in the pro-democracy movement.
Following the hearing, on the same day, Mr Smith faxed a letter to Ms Le informing her that Ms Smidt “will be making a decision on Mr Sun’s case on the basis of the evidence currently before the Tribunal and any other written evidence or submissions you wish to provide”. They were to be provided by 3 January 1996.
This letter provoked a response from Ms Le inquiring whether all “adverse matters” had now been raised with Mr Sun either in the Tribunal’s letter of 8 December or at the previous day’s hearing. Other problems were raised and a request was made for more time. This request was granted. On 22 December Mr Smith advised that Ms Smidt had indicated “the deadline of Jan 3 is to be ignored, and that she will get back to you in due course, in regard to the submissions”.
On 8 January 1996 Mr Smith wrote a further letter to Ms Le. He set out a number of matters about which Ms Smidt had concerns. About the same time, apparently, Ms Smidt decided to seek further information about Chinese university national entrance examination scores. On 10 January a Tribunal researcher wrote to the Chinese Consulate in Sydney asking for “the total score that was required in 1988” and also “the number of students who failed to return to the People’s University when it reopened after 1989”. On the following day she also wrote to NOOSR asking “the total possible score which a student can obtain in the national examination for entrance to academic study in China”.
In response to Mr Smith’s letter of 8 January, Ms Le forwarded a lengthy letter dated 14 January. The letter included several requests. Request (a) was for a further extension of time. Request (b) was that the Presiding Member exercise her statutory power to request that an investigation of the address 159 Hai Zhu Road be made by Departmental or DFAT representatives in Guangzhou, to ascertain whether Mr Sun’s parents still reside, or once resided, there. Request (c) was for the Tribunal to have the Secretary of the Department ask the Papua New Guinea passport control authorities about any record of “Sun Jiang” or “Jiang Sun” entering that country between 15 and 30 April 1993. Request (e) was for a re-translation of the tape of part of the Fordham hearing, the contention being this would reveal inadequacies of interpretation that have “in no small way prejudiced the Tribunal’s perception of Mr Sun”. On 5 February Mr Smith wrote to Ms Le stating Ms Smidt:
“has asked me to advise you that she will not be undertaking the investigations you have requested in (b) to (d) of your letter dated 14 January 1996 nor will she be arranging for a retranslation of a section of the taped hearing conducted by Mr Fordham.”
By letter dated 17 January 1996 an officer of the Consulate General of PRC in Sydney notified the Tribunal that the “national entrance examination for entry into tertiary study in China is divided into two types generally, one is for science and engineering and the another is for liberal arts”. He went on “In 1995, the total score is 750 respectively for both types”. He gave no information about earlier years.
On 1 February the Consulate General provided some further information:
“The national entrance examination for entry into tertiary study in China is divided into two types, one is for science and engineering and the other is for liberal arts. In 1988, the total score for science and engineering was 710 and that for liberal arts was 640. As for the information on the number of the students who failed to return to the People’s University in Beijing, I am sorry that I could not provide any information about it because there is no such information in our office.”
The information contained in this letter was consistent with some information already forwarded to the Tribunal by Heather Gregory of NOOSR, in a letter dated 11 January 1996, but with a major qualification. Opening with a warning that “it is often difficult to obtain accurate information about bureaucratic processes in the PRC, and no guarantee can be given that the information is correct”, the letter relevantly said:
“The total possible score which a student can obtain for entrance to academic study in China. Students sit for either the science or the humanities stream papers. The science stream papers are mathematics, physics, chemistry, biology, Chinese, a foreign language and politics. The humanities stream subjects are mathematics, Chinese, history, geography, a foreign language and politics. All examinations have a maximum mark of 100 except for mathematics and Chinese (120) and biology (70). While the examination is referred to as national, in fact there are province-by-province differences in calculating total scores. The most common method appears to be aggregation, with the maximum score in the science stream 710-720 (bonus marks are available through supplementary questions) and the maximum score in the humanities stream 610-620. Recently other methods have been used, such as a percentile ranking on a scale of 900 in Guangdong Province.”
Guangdong Province was, of course, the province in which Mr Sun claimed to have undertaken his secondary education and sat the National College Entrance Examination (“NCEE”). Information about examination scores was being sought in order to test Mr Sun’s claim that he scored 819 marks in the 1988 NCEE, but nobody at the Tribunal enquired what Ms Gregory meant by “recently”. Had the inquiry been made, it would have revealed that “recently” commenced in 1988, so Mr Sun could have scored 819 marks as he claimed. But his perceived inability to have done so was the primary reason for Ms Smidt concluding, not only that he did not participate in the Beijing demonstrations, but he was not even a student at the People’s University in Beijing.
In February 1996 Ms Le forwarded to the Tribunal an 18 page document entitled with Mr Sun’s name and the words “First Submissions on behalf of applicant”. It contained a paragraph dealing with bias:
“I do not propose to repeat my submissions in relation to bias. I contend that the Presiding Member should disqualify herself. I trust that the Tribunal understand that on a conservative view I am obliged to take the objection if I wish to rely upon it in the event of an adverse finding.”
The submission argued that “the Tribunal is not permitted to re-enter upon a determination of the veracity of Mr Sun’s account of his activities in China”. However, recognising Ms Smidt had indicated a contrary view, it went on to deal at length with those matters.
The Tribunal acknowledged this submission on 22 February. On 23 February Ms Smidt reversed her earlier decision and issued an internal “Country Research Request” seeking information about two matters. First, she set out the known facts, and claims made by Mr Sun, concerning his travel to Australia. The request was in these terms:
“Can you please contact the New Guinea Consulate or their Department of Immigration directly and see if they can provide any information on Mr Sun’s entry to New Guinea.
For example:
Do they have a record of a Sun Jiang entering New Guinea on or about 23 April 1993?
If so, do they have a record of a visa being issued to this person and can they give us a copy of the visa application?
Do they have a record of a Sun Jugu or Jugu Sun or a Sun Jiang entering New Guinea in late November or early December 1993?
If so, do they have a record of a visa being issued to this person and can they give us a copy of the visa application?
Can you find out how long it would take to obtain this information.”
Second, Ms Smidt requested the research officer to “ask DFAT whether their post in Guangzhou would be prepared to check whether somebody lives at an address in the city - or lived there prior to 1993 - this information would help in establishing an applicant’s credibility or lack thereof”.
On 28 February the Papua New Guinea request was communicated to that country’s High Commission in Canberra by Tomas Boncales, a Tribunal research officer. According to a later memorandum, the request was passed on to Port Moresby but there is no evidence of a response. There is, however, a fax dated 13 March from Clare Booth, an officer of the Department in Canberra, to Mr Boncales in Sydney stating “we understand the tribunal member does not wish to pursue question number 2”; that is, the Papua New Guinea inquiry. There is no evidence why Ms Smidt made this decision.
In relation to the other matter, there was apparently a telephone conversation between Ms Booth and Mr Boncales. On 29 February Rocio Trapaga, Assistant Director of the Tribunal’s Research, Information and Documentation Branch, wrote a letter to DFAT to convey “the specific information that Ms Booth requires in relation to the Tribunal’s request for DFAT to check a certain house (and its occupants) in Guangzhou”. Mr Trapaga acknowledged “that it would be up to DFAT to decide whether to conduct the check or not and the manner of conducting it” but he specifically requested “that the Chinese authorities not be consulted regarding this matter”. He also said:
“the presiding Member specifically asked that the attached background information as well as the questions contained in it, should be sent to the post, as is, without any changes.”
The attached background information was lengthy. In some detail it set out Mr Sun’s claims about his travel and activities in China and information about the earlier hearings. In relation to the house at 159 Hai Zhu Road, the document said:
“Mr Sun’s representatives subsequently arranged for someone to obtain a map of Guangzhou showing Hai Zhu Rd, Guangzhou. The map indicates that the road is divided into three parts: Hai Zhu South, Hai Zhu Middle and Hai Zhu North. This person also took a picture of a house at 159 Hai Zhu South, which Mr Sun claims is where his parents live. They argue that this proves that the Chinese officials in Australia have lied and are denying Mr Sun a passport for political reasons. After earlier stating that Mr Sun has expressly asked them not to contact his parents because it is too dangerous, they have now requested that the Tribunal endeavour to ascertain whether his parents are still at this address or whether they lived there prior to April 1993.
Mr Sun has been in detention since his arrival in Australia. His representative has signalled her intention of challenging any adverse decision in the Federal Court.
The presiding Member in this case is anxious to conduct the most thorough investigation possible into Mr Sun’s claims.
She would like the Australian Post in Guangdong to advise:
1)Advise whether the numbers in Hai Zhu Street continue along the entire street or whether the three sections of the street (North, Middle and South) are numbered independently.
2)Ascertain whether Mr Sun’s parents live at the address in question or lived there prior to early 1993.”
On 28 February Mr Smith faxed a letter to Ms Le informing her of Ms Smidt’s changed position in relation to the Papua New Guinea and Guangzhou inquiries. He wrote:
“The Presiding Member, Ms Smidt, has asked me to advise you that she has reconsidered her decision not to conduct the investigations you have requested in New Guinea and Guangdong.
The PNG Consulate has been asked to ascertain whether any records are held indicating that Mr Sun entered New Guinea in late April 1993 or November/December of the same year.
The Australian Post in Guangdong has been asked to ascertain whether Mr Sun’s parents live at 159 Hai Zhu Road. Ms Smidt has asked me to point out that she had initially declined your request to conduct this investigation because she is inclined to the view that, even if Mr Sun’s parents do reside at 159 Hai Zhu Road, this does not necessarily indicate that the Chinese authorities have lied in order to deny him a passport because of his political activities. However, she is anxious to conduct as thorough an investigation as possible into Mr Sun’s case and has therefore asked DFAT to make these checks before making a decision on his case.
Both the PNG Consulate and DFAT have been advised of the urgency of this matter and it is hoped that the information requested is received promptly.”
On 1 March Ms Le responded to Mr Smith’s fax in this way:
“1.I refer to your facsimile of 28 February 1996. Given the Presiding Member’s present inclination, as set out in paragraph 3 of the facsimile, I do not see how conducting ‘as thorough an investigation as possible’ could alter the outcome. In these circumstances I am surprised that the extensive delay in this matter should be further extended. My client has been in detention waiting since August for a redetermination of his second refugee status application. Very little of the period that has elapsed since August can be attributable to delay on the part of the Applicant.
2.Requests for the investigation that are now to be conducted were first made about seven weeks ago. By that time the Tribunal had already complained (when confronted with a request from Mr Sun for more time to make submissions) that the issues were well defined (see the Tribunal’s letter of 8 January 1996 - the 4th last paragraph). At the conclusion of the hearing on 18 December 1995 the Presiding Member remarked upon her recognition that a speedy decision was required and would be delivered. In the Tribunal’s letter of 18 December 1995 the Presiding Member set a deadline for submissions by Mr Sun of only 8 working days.
3.I would remind the Tribunal that its statutory function requires it to investigate proactively. An applicant typically cannot corroborate or verify his or her claims. It is for the Tribunal to seek to test those claims if it harbours doubts as to their veracity. Consistent with the United Nations Guidelines an applicant should be given the benefit of the doubt in respect of his or her claims and consistent with the statutory obligation to do substantive justice (s.420) the Tribunal should, with respect have been investigating these matters earlier. It ought not, with respect, have been necessary for the Applicant to request such investigations.
4.Yet again I remind the Tribunal that Mr Sun is chronically depressed. His moods fluctuate wildly. About month ago [sic] Mr Sun appeared deeply depressed to the point where suicide became a concern that I genuinely held. If Justice Beaumont had not had court commitments I would have had my legal representatives approach him for decisive relief. Mr Sun’s worst moods have improved marginally but he remains depressed and appears fragile. There must be no further delays. If the Tribunal cannot assure me that the enquiries will be conducted within days I propose to instruct my legal representatives to approach the Court for appropriate orders.
5.I am confident that Justice Beaumont did not envisage the present situation when he adjourned the matter - particularly when regard is had to the contents of correspondence between us since the delivery of his Honour’s judgment. Once again I object to the Tribunal entering upon a reconsideration of the truth of Mr Sun’s claims as to his activities in China ...
6.In my submission the Tribunal should proceed immediately to make its decision and assume that the outcome of the enquires [sic] was positive to Mr Sun. To do so would be the only way to obtain a ‘fair, just, economical, informal and quick’ review. Particularly, when other matters upon which Mr Sun’s credit has been challenged have been satisfactorily answered. [Original emphasis]
7.I ask you for your urgent substantive response to the matters raised in this letter.”
Section 420 of the Act is in these terms:
“420(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.”
On 13 March Ms Booth told Mr Boncales the Guangzhou Consulate had advised that “Hai Zhu Street, similar to many long streets in large Chinese cities, is divided into north, middle and south; and that each of the three sections is numbered independently”. This was apparently regarded as new information. On 13 March Mr Smith wrote a letter to Ms Le that commenced:
“The presiding Member has asked me to advise you as follows.
The Australian Post in Guangzhou has advised the numbers in Hai Zhu Road do not run consecutively for the whole length of the road; each section is numbered separately. This being the case it appears that the address given to the Chinese Consulate in Australia was incomplete.”
Apparently both Ms Smidt and Mr Smith overlooked that Mr Sun’s representatives had told them in October the address was 159 Hai Zhu South, and this was stated in the document that Ms Smidt had herself approved, which was forwarded by Mr Trapaga to DFAT as recently as 29 February.
Ms Booth’s communication seems to have terminated any attempt to confirm Mr Sun’s information about his parents’ address. This is inexplicable. Although she never communicated that perception to anyone acting on behalf of Mr Sun, Ms Smidt was later to realise that information about the parents’ address had a significance beyond the attitude of the Chinese authorities. It offered the possibility of checking Mr Sun’s claims concerning his identity and his attendance at the People’s University of China in Beijing in 1988-1989, matters about which Ms Smidt was rightly concerned and in respect of which she made adverse findings. Guangzhou is a large city in which Australian government officers are located. It would have been a simple matter for one of them to call at the house, preferably armed with a photograph of the appellant, and inquire whether he was known there; and, if so, to obtain some information about his history. There is no certainty a visit would have elicited useful information; but substantial fairness surely dictated an attempt be made.
Another issue was still alive. In his letter to Ms Le of 13 March, Mr Smith said:
“During his first interview with the Department, Mr Sun stated that he had scored 819 points in his university entrance examinations in 1988. According to information from the Chinese Consulate the national examination for entry to tertiary institutions in 1988 was divided into two, one for those studying science and engineering where a total mark of 710 was achievable, the other for liberal arts, where the total mark achievable was 840. This raises questions about Mr Sun’s claim that he entered the People’s University of China in 1988.
Should you or Mr Sun wish to make any comments on this information, please forward them to the Tribunal by close of business, Wednesday 20 March 1996. Should you have any problem meeting this deadline, please contact Paul Smith.”
Ms Le responded on 24 March:
“I refer to your last letter raising, inter alia, information about the maximum score for tertiary entrance to an economics course at the People’s University of Beijing in the 1988-89 academic year.
Mr Sun was asked about the maximum scores applicable to him without the contents of your letter being communicated to him. He stated that in his entrance year the maximum possible score was 900. When asked whether the maximum score had changed he replied that in the preceding period the maximum score had been changed from 640.
I am concerned that the Tribunal has received information that is mistakenly erroneous. Given the potential use of this information I ask that you seek affirmative proof of the maximum score being 640 in the 1988-89 academic year if Tribunal is proposing to use this information adversely. Presumably, if the information the Tribunal has received is reliable a university document stating this fact can be readily provided.
You will be aware that, with all the best will in the world, the Department does make mistakes from time to time.”
This request was ignored. This was unfortunate because, as will appear, Ms Smidt put enormous weight on what she saw as a falsehood by Mr Sun regarding the maximum NCEE mark. It would have been very easy to ascertain the maximum Guangdong NCEE in the 1988-89 academic year, and the information would have proved Mr Sun to be correct. We know this because of material set out in two affidavits made after Ms Smidt’s decision and unsuccessfully tendered at the hearing before Lindgren J. The affidavits were retendered at the hearing of the appeal. Counsel for the Minister submitted they were inadmissible but acquiesced in our receiving and reading them on the basis that we would rule on admissibility in our reasons disposing of the appeal.
It is convenient to say immediately that I am of the opinion they were admissible, but only on a limited basis. The material in the affidavits was not before Ms Smidt when she made her decision; so it would be erroneous to have regard to that material in considering the quality of her decision. But there is a contention in this case that Ms Smidt failed to comply with the requirements of s 420 of the Act that the Tribunal provide a mechanism of review that is “fair” and “just” and that it “act according to substantial justice”. In aid of that submission, Mr Lawler points to the Tribunal’s power under s 427(1)(d) to require the Secretary of the Department “to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation ...”. Ms Smidt was obviously aware of that provision. As has been seen, she made numerous requests to the Department for investigations to be carried out. Ms Smidt appreciated, in words later used by Black CJ, von Doussa, Sundberg and Mansfield JJ in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291, that s 427(1)(d), and other provisions, “show that the Tribunal’s role in cases that come before it for review is not a passive one”. But it is one thing for Ms Smidt to have appreciated the need to make particular inquiries, and to have failed to have done so; it is another thing to say the result was to deny Mr Sun substantial justice. If it had been clearly shown that the result of the inquiry would not have advanced his case, there would have been no justification for setting aside the decision on that ground: see Stead v State Government Insurance Commission (1986) 161 CLR 141. This is where the affidavits become relevant. They demonstrate the effect of Ms Smidt’s failure to ascertain the maximum Guangdong NCEE in the 1988-89 academic year, while assuming he had lied about it, was to visit a substantial injustice on Mr Sun.
That such an extreme conclusion should be drawn on this material is astonishing. If error there was with regard to the numbers in Hai Zhu Road, it was in a document prepared by solicitors on behalf of the appellant, following the obtaining of evidence from an independent person about Hai Zhu Road in general and number 159 in particular, the very existence of which had previously been disputed. The error may not have been attributable to the appellant personally. But if it came from his personal instructions, the difficulty of obtaining precise instructions from a client who was psychologically ill and in custody, and the lapse of a number of years since the appellant had lived at home, would have to be taken into account by any fair minded person. Indeed, the numbering system may have changed over the years, just as it turned out on proper checking the examination marking system changed. A simple mistake by one of several persons, including the independent source of information, is perfectly possible. But here is the Tribunal member, when the substantial question raised (whether the address existed) has been answered in favour of the appellant as a result of chance evidence coming to hand, seizing upon a relatively minute detail to find “a clear indication that [the appellant] is prepared to distort or fabricate evidence ... to advance his claim for refugee status”.
Two further comments may be made. The argument put forward by the appellant’s solicitor had been presented without any concealment of the fact that the road was broken into three sections. He pointed this out. He also pointed out that the Chinese characters identifying 159 Hai Zhu Road (which means Sea Pearl Road) included a character meaning “South”. The second matter is that the relevant findings which I have set out include what appears to be intended as an explanation of the Tribunal member’s withdrawal of the request to the Australian Consulate in Guangzhou to verify the residence of Mr Sun’s parents at 159 Hai Zhu South Road. The explanation put forward is that the appellant’s agent “asked that finalisation of Mr Sun’s case not be delayed any further”. This statement seriously misrepresents the agent’s letter. She in fact wrote reminding the Tribunal of the appellant’s condition of depression and of the Tribunal’s statutory duty of fair and quick review. She pointed out there had been significant delay and stated that about a “month ago Mr Sun appeared deeply depressed to the point where suicide became a concern that I genuinely held” (as I have indicated, those having custody of him appeared to share this concern). In that context, she wrote:
“In my submission the Tribunal should proceed immediately to make its decision and assume that the outcome of the enquiries was positive to Mr Sun.”
There was no suggestion that the Tribunal, having been given a photograph of the appellant’s parents’ home, was being invited to abort investigation of that home and find, as the Tribunal member did, “I am unable to determine his identity”. On the contrary, the Tribunal member was being invited to accept the evidence already proffered which, on the face of it, raised no reasonable doubt at least on that score.
Before leaving the Tribunal member’s conclusion about 159 Hai Zhu Street, I should note that she also refers to the appellant’s “insistence that he had provided the officials with complete details” for the purpose of the issue of the passport. This “insistence” is not identified in the findings. What is there stated is that he “said that he had provided the Chinese authorities with all the information they needed to issue him a passport.” That he had not provided “complete details” was never in issue. What was urged on his behalf about that was that some details might harm others who had sheltered him when in hiding, and might cause problems for his parents.
Not only did the Tribunal member conclude, without even suggesting any other justification than that which I have been discussing, that the appellant was “prepared to distort or fabricate evidence”; she also used highly coloured language in rejecting other claims made by him. She said:
“I find that Mr Sun has greatly exaggerated, and possibly fabricated, his claims regarding his participation [in the pro-democracy movement] in 1989.”
Despite that use of the word “possibly”, she later referred to “the overall pattern of fabrication, exaggeration and conceal[ment]”. Apart from this escalation of disbelief of a claim to a positive finding of fabrication, these references to exaggeration are impossible to match with the tenor of the appellant’s evidence. Far from exaggerating his role, he described it as what one would expect of a first year class organizer. He passed on instructions to his class. He described himself as “a lower level of organizer”. When the students were demonstrating over a period of about a month, he said he took some who fainted to the hospital, and obtained food, mentioning a particular teacher by name who was one of those who fainted. He described being grabbed by the police and being put on a bus back to the university on the occasion of one demonstration; but, asked whether on any other occasion the police physically took hold of him, he said they had not. Nothing in his account of the demonstrations or of his activities, when compared with the known accounts of those demonstrations, reads as in any way exaggerated.
I accept that, just as the Tribunal member should not lightly have drawn the conclusion that the appellant had fabricated the account which had been accepted as true by another Tribunal member with the advantage of actually hearing it, so also the Court should not lightly make a finding of actual bias. But the ground of bias has been made available by Parliament as a protection for individuals, and it would be no protection if the Court shrank from giving effect to it in a proper case. When the accumulated matters I have discussed are taken into account, this must be seen as a proper case. It is more than a matter of Wednesbury unreasonableness, which is not in itself an available ground. Errors occur, but to err so many times and in such ways, and each time against the appellant, argues overwhelmingly for the conclusion that the Tribunal member proceeded to consider the case from a preconceived opinion and a fixed position so adverse to him that he could not obtain a fair hearing. In my opinion, that situation fell within the provision of s 476(1(f): the decision was affected by actual bias.
In case I should be wrong in reaching this conclusion, I have considered the same aspects of the decision from a different point of view. A decision may sometimes, by virtue of extreme disparity between it and the material on which it is based, or for some other reason, give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision maker. Davies J referred to this matter in Eshetu at 307. If the conclusion of actual bias should not be drawn, then I would conclude, upon the material to which I have referred, that the Tribunal member erred in law so as to misunderstand the true nature of her task. On that basis, the appeal would succeed under s 476(1)(e), which is expressed to apply “whether or not the error appears on the record of the decision”.
I agree with the orders proposed by Wilcox J, and I also wish to associate myself with his final remarks about the future of this unusual and unfortunate case.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett
Associate:
Dated: 23 December 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG398 of 1997
BETWEEN
SUN ZHAN QUI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT
JUDGE(S):
WILCOX, BURCHETT AND NORTH JJ
DATE:
23 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
NORTH J: I would allow this appeal on the ground that the decision of the Refugee Review Tribunal was affected by actual bias within the meaning of s 476(1)(f) of the Migration Act 1958. I adopt the comprehensive analysis of the facts made in the judgment of Wilcox J. Although his analysis is primarily, but not exclusively, directed to the arguments concerning s 420(2)(b), they apply equally to the case put by the appellant under s 476(1)(f). In my view, the analysis which leads to the conclusion that the Tribunal failed to comply with s 420(2)(b) equally leads to the conclusion in this case that the decision was affected by actual bias. This conclusion flows from an assessment of both the process of investigation of the appellant’s claim made by the Tribunal and also of the reasons for decision of the Tribunal. I desire to add some short observations about actual bias.
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration & Ethnic Affairs (North J, 24 June 1996, unreported) and Sarbjit Singh v Minister for Immigration & Ethnic Affairs (Lockhart J, 18 October 1996, unreported). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O’Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances. Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 is the only case which I have been able to find which has been determined by a finding of actual bias based on an inference from the surrounding facts and circumstances. The case bears some similarities to the present case. Gooliah came from Trinidad to study in Canada. The entry certificate permitted him to attend a specific course in electrical training at the Manitoba Institute of Technology. Having failed in the first year, he entered into a pre-apprenticeship trial, which was an alternative way to commence an electrical qualification. Gooliah claimed to have had the permission of the Immigration Branch to enter the pre-apprenticeship trial. The Immigration Branch denied this and, hence, an inquiry was instituted. The inquiry resulted in a deportation order being made against him. The trial judge concluded that the inquiry was tainted by actual bias. In the Manitoba Court of Appeal, Freedman JA, with whom Guy JA agreed, upheld the decision of the trial judge. Just as in the present case, there were many aspects of the inquiry which led Freedman JA to conclude, at 233, that “the Special Inquiry Officer apparently approached the matter with a mind made up” and, at 234:
“[t]he performance of the Special Inquiry Officer on this matter was not that of one engaged in an objective search for truth. Rather it appeared to be an attempt to find justification or support for a point of view to which, in advance of the relevant testimony, he was already firmly committed.”
Further, actual bias was demonstrated by the hostile attitude towards the applicant’s case throughout the inquiry.
Gooliah demonstrates that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.
Gooliah also demonstrates that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant. Guy JA said, at 238:
“I am not prepared to impute any animated bias to the Special Inquiry Officer, Mr A E Brooks, but it is quite apparent that his function as an officer of the Department of Immigration in Winnipeg did indeed colour his approach to the inquiry to the extent that it showed some measure of prejudgment or prejudice.”
A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. Some judges, including myself, who have in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making. Thus, actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes, and says, that they have not prejudged a case.
Once it is appreciated that actual bias may exist, even if unintended, any special reticence in pursuing such a case should be diminished. I think such reticence has existed in the past, partly because of the failure to understand the true nature of the allegation. For instance, Coles JA in Mohamad Awad Ramadan v NSW Insurance Ministerial Corporation (NSW Court of Appeal, 7 April 1995, unreported) said:
“An allegation of actual bias requires an appellate court if it is to uphold the allegation, to make a finding that the trial judge was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.”
Certainly, in the case of unintended prejudgment, this view goes too far. If a court finds that a judge or other judicial officer has made a decision affected by actual bias, then the judge or judicial officer has made an error in the same way that other appellable errors are made. There is no more impropriety, misconduct, or breach of judicial oath in making such an error than in making other errors found on appeal. Unintended actual bias is no special category of error. Thus, when there are grounds for alleging that a decision, reviewable under s 476 of the Migration Act, was affected by actual bias, applicants and their advisers should not feel restricted by the nature of the complaint from pursuing that ground. The faith of the community in a fair and just system of decision-making depends on the ground of review provided in s 476(1)(f) of the Act being available in a real and practical way, and not so limited by apparent barriers that it is not a form of practical recourse. This is particularly important in the case of the immigration review system. In December 1994, the Parliamentary Joint Standing Committee on Migration reported on concerns about the politicisation of the process of appointment to the Immigration Review Tribunal. The report reflected concern about the quality of decision-making by the Immigration Review Tribunal. Where there is controversy about possible partiality of tribunal members, it is especially important that the scope of review by the Court on the ground of actual bias is genuinely available. I should add one note of caution. It is an unfortunate characteristic of the jurisdiction of the Court under s 476 that applicants too often file applications and subsequent contentions which make broad allegations of error under s 476 but do not provide details of the alleged errors. Too often, at the hearing this results in very weak arguments being lamely pursued or, perhaps, abandoned. It is important to emphasise that, just like any other allegation of error, allegation of actual bias should only be made if the basis for the allegation exists.
I turn now to the appellant’s arguments based on s 420. Prior to Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, I expressed the view that the provisions of s 420 are not “procedures .... required by this Act” within the meaning of s 476(1)(a). I remain of that view. The reasons of the trial judge on this aspect fortify me in that view. There have been many decisions on the issue in recent times. There is almost an equal number of decisions on each side of the argument. There is, therefore, an overriding need for an authoritative decision. It will be provided if the High Court grants special leave to appeal in Eshetu. If not, the authority may need to be provided by a special bench of five or more judges of this Court. In the meantime, the question is what approach a Full Court should take to the majority view in Eshetu if it disagrees with that view. While the Court is not bound by its previous decisions, it will normally follow an earlier decision unless convinced it is wrong: Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, 333 and 359-360. By requiring a conviction that a decision is wrong, the principle seems to exclude mere disagreement with the earlier decision. The disagreement must be of such a degree that the later Full Court regards the reasoning of the former as not only at odds with its own view, but based, at best, on weak grounds. But, as the reasons of the Chief Justice in Byrne, at 304, show, the issue is broader than merely a consideration of the correctness of the earlier decision. In Byrne, for instance, in determining to reconsider an earlier Full Court decision, the Chief Justice took into account whether the earlier decision was unanimous, and whether it was the result of a principle worked out over a series of cases or, rather, whether it was merely a starting point. In the end, the principle seeks to provide a basis to resolve the conflict between the need for certainty in the law, on the one hand, and the need for the law to provide the “right” answer as it appears to the judges deciding the individual case, on the other.
The fact that the majority decision in Eshetu is recent, that it is not founded on any principle developed over a series of cases, that there is an unusually high number of recent single judge decisions which take a different view, and that there was a strong dissent by Whitlam J in Eshetu itself, make it appropriate for this Full Court to reconsider the decision in Eshetu concerning s 420. In my view, the reasoning of the majority is not sufficiently compelling to justify that the demands of certainty in the law overcome the needs of the judicial system to provide the “right” answer. I would, therefore, hold that this Full Court should reconsider Eshetu and determine that it was wrongly decided on the s 420 issue. In the result, I would reject the appellant’s argument that a breach of the provisions of s 420 allows a review under s 476(1)(a). However, if I am wrong about the construction of s 476(1)(a), then I agree with Wilcox and Burchett JJ that, on the facts of this case, the Tribunal clearly failed to accord substantial justice to the appellant.
I agree with Wilcox and Burchett JJ, for the reasons which they give, that the Tribunal fell into error within the terms of s 476(1)(e) and I would also allow the appeal on this ground.
Finally, I wish to refer to the observation by Wilcox J that the Minister should consider exercising his power under s 417 in favour of the appellant. As the comprehensive analysis made by Wilcox J in his judgment reveals, the Court has had the opportunity to examine the entire history of the appellant’s involvement in the review system. The circumstances of this case are exceptional and call for a quick and humane conclusion in favour of the appellant. No doubt, in many approaches to the Minister, cases are urged as “special cases” which are special only in the eyes of their proponents. The history of this case does make it special. It is special because the appellant has special problems of depression and post-traumatic stress disorder arising out of the circumstances of the case. It is special because there have been a number of errors in the review system. A number of these errors make it oppressive to require the appellant to have to face another hearing. The review system is intended to be humane and civilised. In the very few exceptional cases where the hearing processes do not achieve that aim, the Minister is given an overriding power in s 417 to ensure that the aim is achieved. It should be emphasised that the decision to act under s 417 is, of course, that of the Minister. I do not, and could not, compel the Minister to make a decision in favour of the appellant under s 417. On the other hand, it would be a failure in the function of the Court, having so closely reviewed the circumstances of the appellant, not to draw attention to the strong claim for special consideration which this case demands.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox Associate:
Dated: 23 December 1997
75
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