Sun Zhan Qui v Minister for Immigration and Ethnic Affairs

CATCHWORDS

IMMIGRATION - judicial review - application for protection visa - Refugee Review Tribunal conducting de novo review rather than accepting findings of fact made by differently constituted Tribunal in earlier review - whether de novo review outside the terms of the remitter by the Federal Court of “the matter” to the Tribunal - whether Tribunal estopped from conducting de novo review - whether failure to provide review mechanism that was fair, just, economical, informal and quick - whether Tribunal failed to act according to substantial justice and the merits of the case - whether failure to comply with “procedures” required by the Migration Act 1958 - whether improper exercise of power - whether error in applying the “real chance” test to the “facts as found” - whether decision affected by bias - relationship between ss 420 and 476 of Migration Act 1958.

ESTOPPEL - issue estoppel - whether doctrine of issue estoppel applies to Refugee Review Tribunal - Migration Act 1958 s 416.

ADMINISTRATIVE LAW - whether Refugee Review Tribunal biased against applicant - test for reasonable apprehension of bias compared with requirements for proof of actual bias.

Migration Act 1958 ss 416, 420, 425, 476

Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, FCA/Olney J, 23 May 1996
Asrat v Minister for Immigration and Ethnic Affairs, unreported, FCA/O’Loughlin J, 23 August 1996
Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, FCA/FC, 18 September 1996
Thanh Phat Ma v Billings (1996) 142 ALR 158 (FCA/Drummond J)
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 (FCA/Hill J)
Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, FCA/Sackville J, 17 April 1997
Yao Jing Li v Minister for Immigration and Multicultural Affairs, unreported, FCA/Foster J, 24 April 1997
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 (FCA/FC)
Commonwealth v Sciacca (1988) 17 FCR 476
Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87 (Hill J)
Blair v Curran (1939) 62 CLR 464
Comcare Australia v Murphy, unreported, FCA/O’Loughlin J, 13 February 1996
Repatriation Commission v Nation (1995) 57 FCR 25 (FC)
Repatriation Commission v O’Brien (1985) 155 CLR 422
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 387
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 (FCA/FC)

- 2 -

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
McPhee v Bennet (1935) 52 WN (NSW) 8 (FC)
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 (Davies J)
Zakinov v Gibson, unreported, FCA/North J, 26 July 1996
Livesey v New South Wales Bar Association (1983) 151 CLR 288
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248
Ramadan v New South Wales Insurance Ministerial Corporation, unreported, NSW/CA, 7 April 1995
Re JRL; Ex parte CRL (1986) 161 CLR 342
Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 (Einfeld J)
Singh v Minister for Immigration and Ethnic Affairs, unreported, FCA/Lockhart J, 18 October 1996
Wannakuwattewa v Minister for Immigration and Ethnic Affairs, unreported, FCA/North J, 24 June 1996

SUN ZHAN QUI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NG 346 of 1996

Lindgren J
Sydney
6 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 346 of 1996
GENERAL DIVISION )

BETWEEN:
SUN ZHAN QUI
Applicant

AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

CORAM:Lindgren J
PLACE:Sydney
DATE:6 May 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The application be dismissed.

The applicant pay the respondent's costs.

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 ) No NG 346 of 1996
GENERAL DIVISION )

BETWEEN:
SUN ZHAN QUI
Applicant

AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

CORAM:Lindgren J
PLACE:Sydney
DATE:6 May 1997

REASONS FOR JUDGMENT
TABLE OF CONTENTS

INTRODUCTION........ ........ ........ ........ ........ ...... 2

CHRONOLOGICAL OUTLINE OF PROCEDURAL BACKGROUND........ .... 3

RELEVANT PROVISIONS OF THE ACT........ ........ ........ ... 17

SUMMARY OF GROUNDS RELIED ON BY MR SUN AND OF
CONCLUSIONS REACHED ON THEM........ ........ ........ ...... 21

REASONING........ ........ ........ ........ ........ ........ 29

Ground 1."that procedures that were required by [the]
Act ... to be observed in connection with the
making of the decision were not observed":
para 476 (1) (a) of the Act (para 3 of amended
application for an order of review)......... .... 29

1.1Sections 420 and 476........ ........ ....... 29
1.2Section 416........ ........ ........ ........ 48
1.3Principles of issue estoppel and
Repatriation Commission v Nation (1995)
57 FCR 25........ ........ ........ ........ .. 58
1.4Sun's legitimate expectations;
unnecessary delay and expense........ ...... 68
1.5Mr Sun's mental condition........ ........ .. 70
1.6Unfairness and unjustness........ ........ .. 74
1.7Generally........ ........ ........ ........ .. 74

Ground 2."that the decision was an improper exercise
of the power conferred by [the] Act ...":
para 476 (1) (d) of the Act (para 4 of
amended application for an order of review)..... 75

Ground 3."that the decision involved 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,
whether or not the error appears on the record
of the decision": para 476 (1) (e) of the Act
(para 5 of amended application for an order of
review)......... ........ ........ ........ ....... 76

3.1Did the Smidt Tribunal incorrectly apply
the law to the facts as found by it?....... 76
3.2Are the principles in Guo "the law
applicable to the finding of facts ..."?... 77
3.3Is the Smidt Tribunal's fact finding
process reviewable?........ ........ ........ 80
3.4Did the Smidt Tribunal incorrectly apply
the law in relation to the "real chance"
test?........ ........ ........ ........ ...... 85
3.5Did the Smidt Tribunal incorrectly
interpretor apply the law in relation to
to disqualification for reasonable
apprehension of bias?........ ........ ...... 89

Ground 4."that the decision was induced or affected by
... actual bias": para 476 (1) (f) of the Act
(para 6 of amended application for an order of
review)......... ........ ........ ........ ....... 95

4.1Actual bias - the law........ ........ ...... 95
4.2Reasons for Decision of the Smidt Tribunal. 95
4.3Nineteen suggested bases for inference of
actual bias........ ........ ........ ...... 111
4.4Other matters relied on as evidence of
actual bias........ ........ ........ ....... 178
4.5Conclusions on actual bias........ ........ 182

Ground 5."that there was no evidence or other material
to justify the making of the decision": para
476 (1) (g) of the Act (para 7 of amended
application for an order of review)........ .... 183

CONCLUSION........ ........ ........ ........ ........ ...... 184

INTRODUCTION
The applicant ("Mr Sun") applies, in exercise of the right given to him by s 476 of the Migration Act 1958 ("the Act"),
for review of a decision of the Refugee Review Tribunal ("the RRT" - I will use "RRT" as a generic expression, and will use different forms of abbreviation to refer to the RRT as it was constituted by a particular member on a particular occasion). That decision was given by the RRT as constituted by Ms Smidt ("the Smidt Tribunal" - I will refer to Ms Smidt as "the Member"), on 1 April 1996 ("the Smidt Decision").

CHRONOLOGICAL OUTLINE OF PROCEDURAL BACKGROUND
Mr Sun arrived in Australia by air from Papua New Guinea on 16 December 1993, without a passport or other travel document, but with a note reading:

"I am from China. I have to seek political asylum in Australia. Help me please".

Upon arrival in Cairns, he informed a senior migration inspector that he had, in April 1993, using "false" documents, travelled from China to Hong Kong and from Hong Kong to Papua New Guinea. He also told the inspector that he had destroyed his false Chinese passport by flushing it down the toilet in the transit lounge at Port Moresby airport before boarding the flight from Port Moresby for Cairns; that he had not possessed a visa for Australia when he left Port Moresby; that an airline official in Port Moresby had allowed him to board the aircraft without a visa; and that he had destroyed his boarding pass by flushing it down the toilet on the aircraft. He claimed that his correct name was "SUN ZHAN QUI" and that
he had been using the name "SUN JIANG" for the past four years to avoid detection. He said that his date of birth was 23 August 1971.

Mr Sun was interviewed by a compliance officer from the Department of Immigration and Ethnic Affairs ("the Department") on 21 December 1993. On 23 December, he completed a form of "Application for Refugee Status in Australia". The application was deemed by reg 2A.5 of the Migration (1993) Regulations to be also an application for a Domestic Protection (Temporary) Visa ("DPTV") and a Domestic Protection (Temporary) Entry Permit ("DPTEP"). It was a criterion of the grant of a DPTV or a DPTEP that an applicant be determined by the Minister to have refugee status. The application was lodged with the Department on 30 December. The ground of the application was that Mr Sun had a well founded fear of being persecuted in China for reasons of political opinion (cf the definition of "refugee" in Article 1 of the Convention Relating to Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967). Mr Sun's case was and is that his fear arises 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 11 February 1994, a delegate of the respondent ("the Minister") decided that Mr Sun was not a refugee. That decision was an "RRT-reviewable decision" as defined by sub-s 166B (1) of the Act. Five days later, on 16 February, Mr Sun filed an application for review of that decision with the RRT. That application was heard by the RRT as constituted by Mr A Fordham ("the Fordham Tribunal") on 17 March.

The Fordham Tribunal gave its decision ("the Fordham Decision") on 14 May. The Fordham Tribunal said that many aspects of Mr Sun's account of his departure from China and of his transit through Hong Kong and Papua New Guinea were "implausible". In fact, it concluded that Mr Sun's account of his journey from Hong Kong through Port Moresby to Australia was "fabricated", although possibly for well-intentioned reasons. The Fordham Tribunal did not attempt to determine why the fabrication had occurred because it regarded the question of Mr Sun's "mode of departure" as irrelevant to the issue posed by the definition of "refugee" in the Convention. Importantly, the Reasons for the Fordham Decision contained the following sentence:

"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." (at 12)

As will be seen later, this passage assumes some importance in the present case. Mr Sun would characterise it as a finding of fact in his favour. Without prejudging the issue, I will use the neutral, if clumsy, expression, "the Fordham Credibility Acceptance" to refer to this passage.

The Tribunal also accepted that Mr Sun had a fear of persecution for Convention reasons. However, after carefully considering the question whether that fear was well founded, the Tribunal concluded that it was not. It found that Mr Sun's role was that of a minor participant in large demonstrations and rallies; that he had not been involved in the organisation of them, did not know who the organisers were and could not remember who the speakers were; and that his presence at them was of no particular significance. The Fordham Tribunal made other findings adverse to Mr Sun on the issue whether his fear was well founded. Its conclusion was as follows:

"Conclusion

The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant [sic] 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." (at 17)

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 Ll 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.

On 28 November, Mr Sun applied to the RRT for review of that decision. This second application to the RRT for review of a decision of a delegate was heard by the RRT as constituted by Ms Kay Ransome ("the Ransome Tribunal") on 1 May 1995. At the hearing Mr Sun gave evidence and was represented by a migration agent, Ms Marion Le. On 24 May, the Ransome Tribunal gave its decision ("the Ransome Decision").

It is necessary at this point to digress to note ss 50 and 416 of the Act. Section 416 (the full terms of which are set out later) gave the Ransome Tribunal a discretion in relation to the Fordham Decision: the Ransome Tribunal was not required to consider any "information" which had been "considered" by the Fordham Tribunal, and was empowered to "have regard to, and to take to be correct, any decision" that the Fordham Tribunal had "made about or because of that information." Section 50 contained a virtually identical provision applicable to the antecedent stage of an application to the Minister for a protection visa. It provided that in the case of successive applications for such a visa, the Minister had the same discretion in relation to information considered in the earlier application or applications and in relation to any earlier decision which the Minister had made about or because of that information.
The Ransome Tribunal noted that neither Mr Sun nor his representative had placed any new information before it in relation to the original application made in December 1993, and that the only new information which had been placed before it related to the refusal by the Chinese authorities to issue a passport. The Ransome Tribunal decided not "to reconsider any information considered in that earlier application and to take the decision ultimately made on that application to be correct." The Ransome Tribunal so decided expressly by reference to s 50 rather than s 416. It was subsequently to be common ground that in relying on s 50 rather than s 416, the Ransome Tribunal had erred in law. As will be seen later, Mr Sun submits that the expression "the decision ultimately made on that application" as used by the Ransome Tribunal, refers to, or necessarily encompasses, what I have called the Fordham Credibility Acceptance.

The Ransome Tribunal was not satisfied on the material before it, and in view of the incompleteness of the information which Mr Sun had provided to the Chinese authorities, that the failure of those authorities to issue a passport down to that time amounted to a "refusal" to issue one. The final paragraph of the Reasons of the Ransome Tribunal was as follows:

"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 Ransome Decision was expressed as a finding that Mr Sun was not a refugee and it affirmed the delegate's decision denying him a protection visa.

On 22 June 1995, Mr Sun filed an application in this Court (proceeding NG 443 of 1995) for review of both the Fordham Decision and the Ransome Decision. In so far as the application related to the Fordham Decision, it sought review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). In so far as it related to the Ransome Decision, it sought review under the Act. On 21 August, Hill J granted Mr Sun the necessary extension of time pursuant to s 11 (1) (c) of the ADJR Act within which to apply for review of the Fordham Decision.

The application for review of the two Decisions came before Beaumont J for hearing on 23 and 24 August. On 23 August, his Honour made orders, by consent, setting aside the Ransome Decision and remitting "the matter" to the RRT "for fresh hearing in accordance with law".

The course of events which took place in relation to the Fordham Decision assumed importance on the hearing before me. His Honour raised with the parties the question whether the application to set aside the Fordham Decision should be stood over "pending the outcome of a fresh hearing of the second matter [the matter remitted] by the [RRT]." His Honour then noted that "[b]oth parties opposed this, relying on s 416 of the Act." The terms of s 416 appear later in these Reasons for Judgment. At present, it suffices to note that s 416 would empower the RRT, when hearing the remitted matter, not to reconsider information which had been considered by the Fordham Tribunal, and to "have regard to, and take to be correct, any decision that the [Fordham Tribunal] made about or because of that information." After giving an account of s 416, Beaumont J concluded:

"For this reason, although not without some misgivings on my part, the hearing of the application to review the first decision proceeded." (at 3)

However, his Honour suggested to the parties that the following question only should be dealt with at that stage in lieu of a full review under the ADJR Act:

"Whether having regard to the material before the Tribunal the first decision of the Tribunal [the Fordham Decision] is so unreasonable that no reasonable person could have made it." (at 4)

That a decision is "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power" is a form of "improper exercise of power" that is a ground of review under the ADJR Act (see paras 5 (1) (e) and 5 (2) (g) of the ADJR Act) but is not a ground of review under the Act (see para 476 (2) (b) of the Act).

By consent, his Honour made an order for the determination of that separate question. In his Honour's Reasons for Judgment dated 29 August 1995, he recorded that "the subsequent development of the arguments advanced by the parties indicated some possible complications in attempting to separate out one issue in a case of this complexity" (at 4-5), and that the preliminary question was "limited to material actually, rather than constructively, before the Tribunal" (at 5). His Honour concluded (at 51) that, while it was inappropriate that he express a final view on the question, Mr Sun had demonstrated that it was at least arguable that the Fordham Decision was manifestly unreasonable. His Honour identified seven aspects of unreasonableness in the Reasons for Decision of the Fordham Tribunal.

His Honour lastly addressed the question of the appropriateness of his answering the separate question finally at that stage. He said:

"Were it not for the presence of s 416 of the Act, I would have no doubt that it was not appropriate for the court to have embarked upon the present hearing." (at 56)

His Honour concluded as follows:

" ... a Court has already ordered that the matter be remitted to the Tribunal for fresh consideration.
It will now do so in the knowledge that, for the reasons I have given, the Court is of the view that the first decision [the Fordham Decision] was arguably bad for the grounds stated.

I could not and would not wish to pre-judge any question that may arise in terms of an attempt to apply s 416 but, if necessary, that question can be addressed were it to arise. In my view, 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. For those reasons I make the following orders:

(1)That the separate question be answered as follows:

Q.Whether, having regard to the material before the Tribunal (for this purpose it is agreed the material before the Tribunal are exhibits 'A' and 'H'), the decision is so unreasonable that no reasonable person could have made it?

A.Although it is arguable that the first decision of the Tribunal was 'manifestly unreasonable' in the sense described in the Minister for Aboriginal Affairs v Peko Wallsend Limited [(1986) 162 CLR 24] at 41 per Mason J, it is not necessary or desirable that the question asked be answered finally at this stage;

(2)Stand the matter over for mention on 31 August 1995 at 9.30 am with a view to fixing a further date for an extended directions hearing;

(3)Costs reserved." (at 57-58, first two underlinings supplied)

His Honour had in mind the possibility that the RRT, when dealing with the remitted matter, might exercise the discretion given by s 416 in relation to information which had been before the Fordham Tribunal and in relation to a
"decision" of the Fordham Tribunal "made about or because of that information". His Honour accepted that it would be unfortunate if the discretion were to be exercised by the RRT, and it subsequently transpired that the Fordham Tribunal had relevantly fallen into error. His Honour seems to have accepted that in the absence of s 416, or if the RRT dealing with the remitted matter did not exercise the discretion given by that section, the remitted matter would be heard de novo, in which event it would transpire that there would have been no utility in his dealing with the application for review of the Fordham Decision under the ADJR Act. If the result on the hearing of the remitted matter were to be the grant of a protection visa, any review by his Honour of the Fordham Decision would be shown to have been otiose. But against the possibility that the result might again be the refusal of a visa following exercise of the s 416 discretion, his Honour's proceeding to hear the application for review of the Fordham Decision might have utility.

It seems fair to say that in answering Question 1 in the way in which he did, Beaumont J cautioned against a too ready invocation of 416 in relation to the Fordham Decision on the hearing of the remitted matter.

The fresh hearing by the RRT of the remitted matter was conducted by the Smidt Tribunal on 18 December 1995. Mr Sun was represented by Ms Marion Le, migration agent. Mr Sun's position was that Ms Smidt must not conduct a full de novo
review of his case on the merits, and that Beaumont J had instructed the RRT to take to be correct the Fordham Credibility Acceptance as a finding of fact. The Smidt Tribunal referred to the terms of his Honour's order dated 23 August 1995 and to his Reasons for Judgment and correctly observed that no support whatever was to be found in either document for this submission. The Smidt Tribunal decided "not to rely on s 416, but to conduct a full de novo review of the decision to refuse Mr Sun a protection visa" (Reasons for Decision, p 5).

The review took the form of a de novo review of the material which had been before the Fordham and Ransome Tribunals together with additional material which the RRT had obtained subsequently, and a consideration of written submissions made by Ms Le on behalf of Mr Sun. It also included an oral hearing on 18 December 1995. Mr Sun attended the hearing, as did Ms Le. The Member explained that she had "serious doubts" about some of Mr Sun's claims and wished to explore these with him and give him the opportunity of giving explanations. Mr Sun declined to answer virtually any of the questions put to him by the Member. It should be noted that Dr Bruce A Stevens, Clinical Psychologist, had expressed in a report the opinion that Mr Sun suffered from post traumatic stress disorder and a major depressive disorder. After the hearing, the RRT obtained further material relevant to Mr Sun's claims and there was correspondence between the RRT and Ms Le relating to the claims and the Member's concerns.

On 1 April 1996, the Smidt Tribunal decided that Mr Sun was not a refugee and was not entitled to a protection visa.

On 26 April, Mr Sun commenced the present proceeding. By his amended application filed on 24 May 1996, he seeks the following relief in relation to the Smidt Decision:

"1.An order setting aside the Decision.

2.An order declaring that the Applicant is a refugee within the meaning of the Refugee Convention and has a right to be processed on the basis that he is a refugee.

3.Alternatively, an order remitting the Decision to the Tribunal, differently constituted, for reconsideration according to law.

4.An order that the Respondent pay the costs of the Applicant."

RELEVANT PROVISIONS OF THE ACT
PART 7 (ss 410-473) of the Act is headed "REVIEW OF PROTECTION VISA DECISIONS". It is common ground that the delegate's decision on 24 November 1994, being "a decision to refuse to grant a protection visa" (the decision which had been the subject of the review by the Ransome Tribunal), was an "RRT-reviewable decision" (cf para 411 (1) (c) of the Act).

The Ransome Decision on review of that decision of the delegate, being a decision of the RRT, was a "judicially- reviewable decision" (para 475 (1) (b) of the Act) and Mr Sun's application to this Court for review of the Ransome Decision was made under sub-s 476 (1) of the Act. When Beaumont J made, by consent, the order remitting the matter to the RRT, he exercised the power given to the Court by para 481 (1) (b) of the Act to make "an order referring the matter to which the decision relates to the person who made the decision for further consideration, ...".

Section 416, referred to earlier, is as follows:

"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."

As noted earlier, this section had, relevantly, the effect that the Smidt Tribunal was not required to consider any "information" which had been before the Fordham Tribunal, and was entitled to have regard to, and to take to be correct, any "decision" that the Fordham Tribunal had "made about or because of that information."

Division 3 (ss 420-422) and Division 4 (ss 423-429) within PART 7 of the Act are respectively headed "Exercise of Refugee Review Tribunal's powers" and "Conduct of review". Mr Sun relies on s 420 which provides:

"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."

PART 8 (ss 474-486) of the Act is headed "REVIEW OF DECISIONS BY FEDERAL COURT". Division 2 (ss 475-486) of that Part also bears that heading, the earlier Division 1 (s 474) being headed "Interpretation". It is common ground that the Smidt Decision, being a decision of the RRT, is a "judicially-reviewable decision" (cf para 475 (1) (b) of the Act) and that Mr Sun's present application to this Court for review of that decision is made under sub-s 476 (1) of the Act.

Sub-section 476 (1) provides that application may be made for review by the Court of a judicially-reviewable decision on any of the seven grounds described in paras (a)-(g) of that sub-section. No other grounds are specified. Moreover, sub-s 485 (1) provides expressly that in spite of any other law, including s 39B of the Judiciary Act 1903, this Court does not have jurisdiction in respect of a judicially-reviewable decision other than the jurisdiction provided by Part 8 of the Act or by s 44 of the Judiciary Act 1903 (s 44 is not presently relevant). In his amended application for review, Mr Sun relies on the grounds described in paras (a), (d), (e), (f) and (g) of sub-s 476 (1) which are, relevantly as follows:

"(a)that procedures that were required by this Act ... to be observed in connection with the making of the decision were not observed;"

"(d)that the decision was an improper exercise of the power conferred by this Act ... ;

(e)that the decision involved 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, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by ... by actual bias;

(g)that there was no evidence or other material to justify the making of the decision."

It is convenient to note here that sub-s 476 (2) provides:

"(2) The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."

SUMMARY OF GROUNDS RELIED ON BY MR SUN AND OF CONCLUSIONS REACHED ON THEM
It is convenient to set out now the five grounds on which Mr Sun relies and, in outline and summary form, the conclusions which I have reached in relation to them, postponing until later, the full statement of those conclusions and the statement of my reasons for reaching them.

Ground 1."that procedures that were required by [the] Act ... to be observed in connection with the making of the decision were not observed": para 476 (1) (a) of the Act (para 3 of amended application for an order of review).

1.1 Sections 420 and 476
Mr Sun submits that for the purposes of para 476 (1) (a), s 420 established "procedures that were required ... to be observed in connection with the making of the [Smidt] decision [which] were not observed". The first supposed procedure on which Mr Sun relies is the requirement of sub-s 420 (1) that the RRT, in carrying out its functions under the Act, is to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". According to Mr Sun's amended application for an order of review, the Smidt Tribunal did not do so in the following respects:

"(a)The Smidt Tribunal made findings of fact contrary to the findings of fact of the Tribunal constituted by Mr Fordham ('the Fordham Tribunal') in circumstances where:

(i)The decision of the Fordham Tribunal subsists (Justice Beaumont having not yet determined the challenge by the
Applicant to that decision);

(ii)the principles of issue estoppel and or [sic] the principles referred to in Repatriation Commission v Nation (1995) 57 FCR 25 prevented the Smidt Tribunal from so acting.

(iii)the decision of the Smidt Tribunal to proceed with a de novo hearing in respect of the whole of the matters considered the Fordham Tribunal, including in particular, the Applicants [sic] claims as to events in China accepted by Mr Fordham,

a.was likely to and did in fact result in unnecessary delay and expense in the resolution of the Applicant's case;

b.was contrary to the Applicant's legitimate expectation that he would not be re-exposed to adverse findings having been the subject of a favourable finding.

(iv)the Applicant's mental condition made it unfair to require him to attend a further hearing and give evidence.

(b)the Smidt Tribunal acted unfairly and unjustly in proceeding to make such findings in circumstances where it had not had the benefit (as had Mr Fordham) of observing the demeanour of the Applicant giving evidence in respect of his claim and where the Applicant was suffering from extreme depression and acute post traumatic stress disorder and thus not in a fit state to be required to provide explanations for fresh adverse matters going to those findings.

(c)Having regard to the matters particularised in paragraph 6 [para 6, referred to below, particularises an allegation of actual bias], the Smidt Tribunal went beyond the limits to which a Tribunal acting fairly and justly could reasonably go in adopting the role of an adversary rather than the role of independent and fair inquisitor."

In my opinion the better view is that sub-s 420 (1) does not
establish procedures "that were required by [the] Act ... to be observed in connection with the making of the [Smidt] decision", but, in any event, it is not shown that the Smidt Tribunal failed to provide a mechanism of review which was fair, just, economical, informal and quick.

The second alleged non-observance of procedural requirements depends on para 420 (2) (b), which requires that the RRT, in reviewing a decision, "must act according to substantial justice and the merits of the case". Mr Sun's case is that para 420 (2) (b) also establishes "procedures that were required by [the] Act ... to be observed in connection with the making of the Smidt Decision" and that they were not observed. Mr Sun repeats, as particulars of the non-observance, the particulars contained in paras (a), (b) and (c) quoted above.

In my opinion the better view is that para 420 (2) (b) also does not establish "procedures that were required by [the] Act ... to be observed in connection with the making of the [Smidt] decision", but, in any event, it is not shown that the Smidt Tribunal did not act according to substantial justice and the merits of the case.

1.2Section 416

In my opinion, the better view is that the "decision" referred to in para 416 (d), while referring to the ultimate decision made by the RRT on the earlier application and perhaps any
finding or findings of fact essential or indispensable to that decision, does not extend to refer to other findings of fact made in the course of the determination of the earlier application, such as the findings of the Fordham Tribunal favourable to Mr Sun. In any event, the Smidt Tribunal had a discretion whether to exercise the power given by s 416 and was entitled not to exercise it.

1.3Principles of issue estoppel and Repatriation Commission v Nation (1995) 57 FCR 25 (FC)

If the doctrine of issue estoppel applied in relation to the Fordham Decision, its effect would have been adverse to Mr Sun, since what was essential to the Fordham Decision that Mr Sun was not a refugee was the finding that his fear of persecution for a Convention reason (political opinion) was not well founded. It would be a perversion of the doctrine that it should operate in respect of the findings that Mr Sun had been involved in pro-democracy activities in Beijing and Foshan to establish before, or contribute to a finding by, the Smidt Tribunal, that his fear of persecution was well founded, contrary to the finding which the Fordham Tribunal had made on that issue.

Further, I am bound by authority to hold that the doctrine of issue estoppel does not apply to the RRT.

Repatriation Commission v Nation, supra, is not an authority against the Smidt Tribunal's power to reconsider all the evidence or against its making findings of fact adverse to Mr Sun, because Beaumont J's order of remitter to the RRT, properly understood, was of the whole matter, and did not exclude those factual issues on which the Fordham Tribunal had made findings in favour of Mr Sun.

1.4Unnecessary delay and expense and Mr Sun's legitimate expectations

Mr Sun did not have a legitimate expectation that the Smidt Tribunal would not re-enter upon factual issues on which the Fordham Tribunal had made findings in his favour, and the Smidt Tribunal was entitled to re-enter upon those issues. For this reason and generally, the complaint of unnecessary delay and expense is not made out.

1.5Mr Sun's mental condition

Mr Sun appeared, but did not give evidence before the Smidt Tribunal which, therefore, lacked the benefit of observation of his demeanour, an advantage which the Fordham Tribunal had enjoyed. But it was Mr Sun's decision not to give evidence, and the Smidt Tribunal went to considerable lengths to ensure that any disadvantage was overcome.

1.6Unfairness and unjustness

This aspect of Mr Sun's claim is not made out.

1.7Generally

There is no further consideration which establishes Ground 1. In particular, to treat the alleged non-observance of the requirements of s 420 as an error of law within para 476 (1) (e), rather than (as claimed) a non-observance of a required procedure under para 476 (1) (a), would not assist Mr Sun, because the Smidt Tribunal's conduct satisfied the relevant epithets in sub- 420 (1) and para 420 (2) (b).

Ground 2."that the decision was an improper exercise of the power conferred by this Act": para 476 (1) (d) of the Act (para 4 of amended application for an order of review).

Mr Sun gives as particulars the particulars that he gives in respect of Ground 1. The ground is not made out.

Ground 3."that the decision involved 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, whether or not the error appears on the record of the decision": para 476 (1) (e) of the Act (para 5 of amended application for an order of review).

Mr Sun gives the following particulars:

"5.1Whilst the Tribunal correctly stating [sic - stated] the law applicable to the finding of facts in relation to the determination of facts for the purposes of determining an application for refugee status (see Decision pages 27 - 28), the Tribunal incorrectly applied those principles in making adverse factual findings on the Applicant's claims as to:

(a)his identity and set out in the Decision page 28.7 to 30.9 and 65.3.

(b)his tertiary entrance mark and set out in the Decision at page 31.9.

(c)his participation in the a [sic] protest at Xinhuamen on or about 19 April 1989 and set out in the Decision at 32.1, 34.9-35.3; 35.5.

(d)his participation in the protest march of 27 April 1989 and set out in the Decision at 39.3; 39.55.

(e)his involvement in the period 27 April to 3 June 1989 and set out in the Decision at 40.4.

(f)fleeing to Foshan and remaining there in hiding set out in the Decision at 42.3; 62.4

(g)participation in the pro-democracy movement and set out in the Decision at 40.6ff

5.2The Tribunal correctly stated the law in relation to the 'real chance' test to be applied in determining whether the Applicant faxed a well-founded fear of persecution for a reason set out in the Refugee Convention but incorrectly applied that law to the facts such error of law arising in the manner described by Justice Beaumont in Guo Wei Rong v MIEA (1995) 135 ALR 421 at 433.4ff such error emerging from a consideration of the matter as a whole and by reference to the language and or concessions in the Decision at 49.6; 51.7; 54.3; 53.8; 58.9; 59.2-.5; 60.1; 60.3; 61.5; 65.6.

5.3The Tribunal incorrectly interpreted the applicable law in relation to disqualification for reasonable apprehension of bias as set out in the Decision at 22.8.

5.4In rejecting the application for disqualification for reasonable apprehension of bias made by the [sic] Marion Le, the migration agent of the Applicant ('the Migration Agent') on 18 December 1995 and renewed by letters dated 14 January 1996 and 9 February 1996, the Tribunal incorrectly applied the law to the facts (cf Decision 22)."

In my view,

the matters referred to in para 5.1 quoted above do not represent errors of law of the kind referred to in para 476 (1) (e) since they are not particulars either of "an error involving an incorrect interpretation of the applicable law" or of "[an error involving] an incorrect application of the law to the facts as found by the person who made the decision", but, in any event, I am not satisfied that the Smidt Tribunal committed errors of either of those kinds;

(ii)the Smidt Tribunal addressed itself to the correct legal question, and none of the specific passages referred to in para 5.2 indicate a failure to apply the correct test to the facts "as found" by the Smidt Tribunal;

(iii)the Member was not obliged to disqualify herself for reasonable apprehension of bias as distinct from actual bias and, in any event, notwithstanding a linguistic slip, in substance she correctly understood and applied the test for disqualification for reasonable apprehension of bias.

Ground 4."that the decision was induced or affected by ... actual bias": para 476 (1) (f) of the Act (para 6 of amended application for an order of review).

In his amended application, Mr Sun gives extensive "particulars" of evidence from which, he submits, I should infer that the Member was actually biased against him. Later, I consider Mr Sun's case in this respect in detail, and
conclude that actual bias is not established.

Ground 5."that there was no evidence or other material to justify the making of the decision": para 476 (1) (g) of the Act (para 7 of amended application for an order of review)

In his amended application, Mr Sun simply states that:

"There was no evidence or other material to justify the making of the Decision in that the decision was based on the existence of a particular fact, and that fact did not exist."

Sub-section 476 (4) provides that the ground specified in para 476 (1) (g) is not to be taken to be made out unless para 476 (4) (a) or (b) is satisfied. Relevantly, para 476 (4) (b) reads, "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." I am not satisfied that the Smidt Tribunal based its decision on the existence of a particular fact which did not exist.

REASONING

Ground 1."that procedures that were required by [the] Act ... to be observed in connection with the making of the decision were not observed": para 476 (1) (a) of the Act (para 3 of amended application for an order of review).

1.1 Sections 420 and 476
1.1.1 The case law
Mr Sun concedes (para 18 of his submissions in reply) that I
should treat the decision of Olney J in Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, 23 May 1996 ("Velmurugu") as persuasive authority against his submission that para 420 (2) (b) prescribes a procedural requirement. However, he submits that his Honour's decision is irrelevant to sub-s 420 (1). For reasons that appear below, in my view, the case for regarding sub-s 420 (1) as laying down a "procedure" is no stronger than the case for regarding para 420 (2) (b) as doing so.

In Velmurugu, Olney J said:

"... the relevant question in this case is whether the duty imposed on the Tribunal by s 420 (2) (b) can properly be classed as a `procedure' required by the Migration Act to be observed because, if that not be the case, there can be no scope within the limited grounds for review provided for in s 476 to attack a decision on the basis on which the present applicants seek to rely." (at 6)

His Honour thought that the applicants before him were, in effect, seeking a review on the merits, and that this was not open because it would be inconsistent with the legislative scheme of Part 8 of the Act, to construe para 476 (1) (a) as opening up a route by which a review on the merits could be obtained. His Honour said further that:

"... a decision on the merits of a case does not involve a `procedure' and thus could not give rise to review on the ground described in s 476 (1) (a)." (at 7)

The relationship between ss 420 and 476 has been considered in numerous later cases. In Zakinov v Gibson, unreported, 26 July 1996 ("Zakinov"), North J expressed agreement with the view expressed by Olney J in Velmurugu at p 7 noted above, which North J described as a view:

"...that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s 420 and thus cannot give rise to a review on the grounds described in s 476 (1) (a)." (at 14-15)

In Asrat v Minister for Immigration and Ethnic Affairs, unreported, 23 August 1996 ("Asrat"), O'Loughlin J discussed the relationship between para 420 (2) (b) and s 476 with reference to a hypothetical case in which material information adverse to the applicant's interests came to the notice of the RRT of which it appeared the applicant had not known. His Honour said that non-disclosure of it to the applicant would be a failure to accord "substantial justice" and would amount to an "error of law" providing a basis for the Court's intervention under para 476 (1) (e). His Honour then said:

"... that [intervention under para 476 (1) (e)], in my opinion, would be the appropriate ground. Paragraph 476 (1) (a) deals with the subject of procedures, and I do not think that a failure of the type that I have postulated would be a breach of a procedure, it would be a breach of the standards laid down in par 420 (2) (b).

It must not be overlooked that even though par 420 (2) (b) requires the Tribunal to act according to the merits of the case, this Court is not empowered to engage in an exercise of reviewing the merits. The force and effect of par 420 (2) (b) is therefore subject to that limitation in these and like proceedings." (at 9-10 - underlining supplied)

In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 18 September 1996 (FC) ("Dai"), after setting out s 420, Davies J observed:

"Although s 420 (1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be `fair' and `just'. If this has not occurred in the present case, the applicant will be entitled to seek relief under s 476 (1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed." (at 17)

In Singh v Minister for Immigration and Ethnic Affairs, unreported, 18 October 1996 ("Singh"), Lockhart J held that the case before him was distinguishable from Velmurugu and Zakinov on the basis that in those two cases, Olney J and North J, respectively, had said that the applicants were seeking a review on the merits, while in Singh the applicant was not doing so. His Honour added:

"The applicant has confined his attack on the Tribunal's decision to the conduct which, as previously particularized, is said to indicate that the Tribunal had not acted according to substantial justice and the merits of the case. The present case is thus distinguishable from these judgments of Olney J and North J.

Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s 420 (1))." (at 51-52)

His Honour continued by holding that it had not been established that the RRT member had failed to act according to substantial justice or had failed to act fairly. Importantly, for present purposes, his Honour added:

"If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s 476 (1) (a), the procedure being to act according to substantial justice in reviewing a decision." (at 52)

In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (FCA/FC), Sackville J referred to, but was not called upon to deal with, the "question concerning the relationship between the requirements of s 420 of the Migration Act and the grounds of review specified in s 476 (1) (a) of the Act, that the procedures required to be observed had not been observed".

In Thanh Phat Ma v Billings (1996) 142 ALR 158 ("Thanh Phat Ma"), Drummond J had to consider whether the RRT's failure to draw the applicant's attention to a certain cable established the ground of review provided for by either para 476 (1) (a) or (e). The contents of the cable were not adverse to the applicant who had not suffered any prejudice from not having been given a copy of it. For this reason, his Honour held that there had not been a non-compliance with the requirements of natural justice. However, his Honour went on to say that both sub-s 420 (1)'s requirement that the RRT pursue the objective of providing a mechanism of review that is "fair" and para 420 (2) (b)'s requirement that the RRT "must act according to substantial justice and the merits of the case", had the effect of requiring that the RRT comply with the demands of natural justice. In relation to sub-s 420 (1), his Honour said:

"The obligation cast by s 420 (1) on the tribunal to pursue the objective of providing a mechanism of review that is fair, in carrying out its functions under the Act, would appear to impose on the tribunal the duty to comply with the rules of natural justice in dealing with each matter that is brought before it." (at 163)

In relation to para 420 (2) (b), his Honour said:

"Once it is accepted, as I think it must be, that, in the context of s 420 of the Migration Act, the obligation imposed on the tribunal to act in reviewing decisions in accordance with substantial justice and the merits of the case does not permit the tribunal to disregard the statutory criteria governing the grant of visas [Drummond J had earlier cited Kumar v Immigration Review Tribunal (1992) 36 FCR 544 and Collins v Repatriation Commission (1980) 32 ALR 581 as authority for this proposition], it is difficult to see how that statutory requirement can involve anything other than an obligation governing the kind of procedure the tribunal must follow in applying the statutory criteria in the course of reviewing the decision. The statutory duty must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the determination are identified and considered.
I have difficulty in finding any distinction between such procedures and the requirements of natural justice." (at 164-165)

His Honour considered, however, that because of para 476 (2) (a), which excludes "a breach of the rules of natural justice" as a ground of review, there was an apparent conflict between the duties cast by s 420 on the RRT and the limited jurisdiction to review vested in this Court by s 476.

His Honour J disagreed with O'Loughlin J's view expressed in Asrat that if information adverse to the interests of an applicant came to the notice of the RRT and the RRT failed to draw it to the applicant's attention, the RRT's decision would be open to review under para 476 (1) (e) ("error of law"), although not under para 476 (1) (a) ("non-observance of required procedures"). He thought that the failure to disclose the information would be nothing more than a breach of one of the fundamental rules of natural justice and that para 476 (2) (a) would preclude review. His Honour added:

"If I am correct in thinking that s 420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s 476 (2) (a) prevents correction of the failure by the tribunal to do that, it follows that the parliament has adopted a process in which an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think this is what Parliament must be taken to have intended." (at 166).

In Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 January 1997, Hill J analysed "the relationship between section 420 and section 476 (1) (a)". After referring to relevant extracts from the Explanatory Memorandum which
accompanied the Bill for the Migration Reform Act 1992, his Honour noted the following submission on behalf of the respondent Minister:

"It is submitted on behalf of the Minister that s 420 does not prescribe a form of procedure at all or that, if it does, it was never intended to be a form of procedure breach of which would entitle an applicant to judicial review under s 476 (1) of the Act. Alternatively, it is submitted that if s 420 does prescribe a form of procedure, it does so in terms so vague and general that they could scarcely be not observed and certainly were observed in the present case." (at 483)

After noting discussion of the relationship between sub s 476 (1) and s 420 in some of the cases to which I have already referred, his Honour said that he saw no reason to depart from the views expressed by Davies J in Dai and by Lockhart J in Singh, that a failure to adopt "fair" and "just" procedures (Davies J in Dai at 17), or to accord "substantial justice to the applicant" (Lockhart J in Singh at 52), would constitute a non-observance of a procedure which was required by the Act to be observed within para 476 (1) (a). However, he also observed that "the procedural specification in s 420 is somewhat vague" and "imports no more than that the review mechanism is to be fair and just" (at 27). In particular, he said that s 420 "could never be construed as creating a form of merit review" (at 27), and that the references in the section to fairness and justice must be read subject to sub-s 476 (2) "so that, if the injustice would involve a breach of the rules of natural justice, then judicial review would be
precluded" (at 28). His Honour said: "[t]his so narrows the ambit of s 420 as to leave little scope for its operation, but that is not to say that s 420 has no role at all" (at 28). On the facts, his Honour found that the case did not fall within para 476 (1) (a) as involving a breach of the RRT's obligation to be fair or just.

In Jovicic v Minister for Immigration and Ethnic Affairs, unreported, 18 March 1997, Goldberg J seems to have regarded Drummond J as having decided in Thanh Phat Ma v Billings, supra, that the ground of review provided in para 476 (1) (e) is not made out by reference to s 420 (at 10).

In Singh v Minister for Immigration and Multicultural Affairs, unreported, 4 April 1997, Mansfield J referred to, but found it unnecessary to decide, the issue whether sub-s 420 (1) and para 420 (2) (b) laid down "procedures" for the purpose of para 476 (1) (a). Assuming that they did, his Honour found that the applicant had not established non-observance of them.

In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 17 April 1997, Sackville J followed the conclusions of Drummond J in Thanh Phat Ma on the construction of s 420 and paras 476 (1) (a) and (e) and 476 (2) (a) as they interrelated. The claim before him, like that which had been before Drummond J, was that the RRT had taken information adverse to the applicant into account without affording him an opportunity to comment on it. His Honour held that this claim was an allegation of "a breach of the rules of natural justice ... in connection with the making of the decision" which is not a ground upon which an application may be made (para 476 (2) (a) of the Act). He noted, however, that “the position may be different ... if the alleged breach is of a particular statutory requirement ... with which the RRT must comply” (at 14).

Finally, in Yao-Jing Li v Minister for Immigration and Multicultural Affairs, unreported, 24 April 1997 ("Yao-Jing Li") Foster J declined to follow the reasoning of Drummond J in Thanh Phat Ma. His Honour held that para 420 (2) (b) of the Act was not concerned with natural justice.

"... the term `substantial justice’ is concerned with the decision of the issues raised in the case rather than the process of deciding them. Considerations of natural justice focus upon ‘due process’ in the making of decisions. ... Section 420 (2) (b) mandates that the Tribunal act in accordance with substantial justice. A failure to do so would be a non-observance of a procedure required by the Act and reviewable under s 476 (1) (a). It would also, in my opinion, be a decision `not authorised’ by the Act and, pursuant to s 476 (1) (c), similarly reviewable. It is possible that it may also be reviewable under s 476 (1) (e) but I prefer to express no concluded view as to this." (at 39)

1.1.2 In view of my conclusion that Mr Sun has not established that the mechanism of review afforded to him was not "fair, just, economical, informal and quick", or that the Smidt Tribunal did not "act according to substantial justice and the merits of the case", it is not necessary for me to reach a final view on the present issue of statutory construction. Moreover, one must hesitate to add to the single judge decisions on an issue which clearly calls for authoritative elucidation at appellate level. But since the matter was the subject of detailed submissions, the authorities to which I have referred do not speak with one voice, and those authorities do not refer to some considerations which I find persuasive, perhaps I may be pardoned for indicating the view which I prefer and my reasons for preferring it.

In my respectful opinion, the better view is that neither sub-s 420 (1) nor para 420 (2) (b) establishes "procedures ... required by [the] Act ... to be observed in connection with the making of [a] decision" within the meaning of para 476 (1) (a). There are provisions of the Act which clearly do establish such procedures. Examples are to be found in para 425 (1) (a), s 426, sub-s 427 (2), sub-s 428 (4) and s 429. But sub-s 420 (1) and para 420 (2) (b) are of a different nature.

Section 420 is the first section within Division 3 dealing with the exercise of the RRT's powers. In my respectful opinion, s 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of a "procedure", which, to my mind, signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings (cf "That which regulates the formal
steps in an action or other judicial proceeding": Black's Law Dictionary (6th ed) sub tit "Procedure"). The distinction between "procedures" and "standards" drawn by O'Loughlin J in Asrat, is that which I would make.

I find it convenient now to consider the two provisions separately although some considerations are common to both.

1.1.3 Sub-section 420 (1) directs the RRT "in carrying out its function under [the] Act ... to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". A requirement that the RRT pursue an objective of providing a mechanism of review satisfying such a general description is not, in my respectful opinion, a requirement that it observe a procedure in connection with the making of a particular decision, with which para 476 (1) (a) is concerned.

This view gains support from four more specific considerations. First, the objectives referred to in sub-s 420 (1) will often be inconsistent as between themselves. In particular, a mechanism of review that is "economical, informal and quick" may well not be "fair" or "just". It is difficult to accept that the legislature intended in para 476 (1) (a) to provide a ground of review where a mechanism of review in its application to a particular case, although "fair" and "just", was not "economical", "informal" and "quick". Similarly, I do not think that the legislature intended by para 476 (1) (a) to afford a ground of review wherever the RRT provided a mechanism of review which, in its application to a particular case, was "economical", "informal" and "quick", but which might be considered to be somewhat less than "fair" and "just" in some respect.

The second consideration is derived from the nature of non-observance of the supposed "procedure" laid down in sub s 420 (1). Non-observance would be, for example, a "failure to pursue the objective of providing a mechanism of review that is fair" or a "failure to pursue the objective of providing a mechanism of review that is economical". The nature of the complaint made in a particular case might make relevant evidence of the RRT's staff and financial resources and its internal organisation and practices. A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in sub-s 420 (1), would not necessarily establish that the RRT had not been pursuing the specified objective. The difficulty, perhaps practical impossibility, of proving a failure to pursue that objective in some cases suggests that the requirement of sub-s 420 (1) was not intended to fall within the ground of review described in para 476 (1) (a).

The third consideration is founded on para 476 (2) (a) the terms of which were set out earlier. It will be recalled that that paragraph provides that a breach of the rules of natural justice is not grounds upon which an application may be made
under sub-s 476 (1). If sub-s 420 (1) requires observance of a "procedure" for the purpose of para 476 (1) (a), in so far as it refers to a "fair" and "just" mechanism of review, it must refer to "procedural fairness" - an expression synonymous with "natural justice" (see Aronson and Dyer, Judicial Review of Administrative Action, 1996, at 391). But para 476 (2) (a) provides expressly that breach of the rules of natural justice is not a ground of review. This suggests that the legislature did not intend the "procedures" of para 476 (1) (a) to embrace the standards which sub-s 420 (1) requires the RRT to pursue.

There is another argument based on para 476 (2) (a) that leads to the same result. The general law notion of natural justice comprises the "impartial tribunal" requirement (the "bias rule") and the "fair hearing requirement" (the "hearing rule"): see Aronson and Dyer, supra, at 387 ff. While para 476 (2) (a) makes clear that these requirements do not provide the basis of a ground of review, para 476 (1) (f) provides that actual bias is such a ground, while para 476 (1) (a) and para 425 (1) (a), taken together, have the effect that a failure to give a genuine opportunity to appear before the RRT to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that para 476 (1) (f) and para 425 (1) (a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in para 476 (2) (a), "the rules of natural justice", is to be read down in some way
so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules.

The fourth consideration derives from the Explanatory Memorandum which accompanied the Migration Reform Bill 1992. That Memorandum makes clear that s 476 was intended to introduce a regime of limited grounds of review which were "certain" in their meaning (see esp pp 81-82). To permit review on the ground that a mechanism of review is not "fair" or "just" is discordant with that intention.

For all the foregoing reasons, I think that the better view is that sub-s 420 (1) does not lay down a procedure required to be observed in connection with the making of a decision by the RRT. Before parting with sub-s 420 (1), however, I make the following further observation. It should not be thought that all non-observances of statutory directives addressed to a public body must give rise to a civil remedy. Statements of broad objectives to be pursued afford a paradigm illustration of statutory commands which are not intended to generate a private right of action. An example is found in s 9 of the Disability Services Act 1992 (Qld) which was considered in Criminal Justice Commission v Queensland Advocacy Incorporated [1996] 2 Qd R 118 (CA). That section provided:

"9(1)People with disabilities have the same basic human rights as other members of society and should be empowered to exercise their rights.

(2)People with disabilities have the right to -

(a)respect for their human worth and dignity as individuals; and

(b)realise their individual capacities for physical, social, emotional and intellectual development; and

(c)services that support their attaining a reasonable quality of life in a way that supports their family unit and their full participation in society; ...

(3)........ ........ ........ ........ ........ .

(4)Services, and the information necessary to support a right, should be provided in a way that is appropriate taking into account the disability and the person's cultural background.

(5)........ ........ ........ ........ ........ .."

Part 4 of the same Act comprised ss 10-24, the general nature of which is indicated by the following sections:

"10.This Part sets out the objectives to be promoted by service developers and service providers in the development and implementation of programs and services for people with disabilities.

11.Programs and services should be designed and implemented so that their focus is on developing the individual and on enhancing the individual's opportunity to establish a quality life.

12.Programs and services should be designed and implemented to ensure that ...

13......... ........ ........ ........ ........ ...

14.Services should be tailored to meet the individual needs and goals of people with disabilities.

15.... - 19. ...

20.Services should be designed and implemented to ensure that people with disabilities have access to any necessary independent advocacy support so that they can participate adequately in decision-making about the services they receive."

Of these provisions, Demack J said:

"When the provisions of s 9 of the Disability Services Act 1992 are considered, it is clear that they enunciate broad principles and do not create private rights that can be enforced by court action. Part 4 of the Act sets out objectives to be promoted by service developers and service providers. It does not prescribe obligations that must be met. The sections, which follow s 9 in Part 4, or have the verb `should', indicating that what is there described are desirable goals which the community, through Parliament, has accepted. Thus, whilst it is correct ... that the Public Trustee is a service provider, ..., it does not follow that the residents have rights given by s 9 which, if the Public Trustee does not pursue, this Court or any court can authorise [Queensland Advocacy Incorporated] to pursue." (at 144-145)

Of course, it is possible to distinguish from the statutory provisions with which his Honour was concerned, the words "[t]he Tribunal .. is to pursue the objective of providing ..." in sub-s 420 (1) of the Act. The construction of any statutory provision must depend on its own terms and context. However, in my view the general sense of the passage quoted is aptly applied to sub-s 420 (1).

I do not need to resolve the issue of construction finally, because it is not shown that the Smidt Tribunal failed to provide a mechanism of review that was fair, just, economical, informal and quick. The numerous specific complaints made by Mr Sun are considered later. In particular, however, I do not think that the fact that the Smidt Tribunal embarked upon a hearing de novo shows that it adopted a mechanism of review which failed to satisfy those epithets.

1.1.4 I turn now to para 420 (2) (b). I earlier gave reasons for construing both this paragraph and sub-s 420 (1) as not laying down "procedures". In addition, the third and fourth specific considerations which I identified in relation to sub-s 420 (1) apply, with necessary adaptations, to para 420 (2) (b).

It will be recalled that sub-s 420 (2) provides that the RRT, 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."

These two paragraphs are related by way of contrast. The RRT would fail to observe the command contained in para (b) if it relied on technicalities, legal forms or rules of evidence in preference to acting "according to substantial justice and the merits of the case", even if it did not regard itself as "bound by" them. This view is consistent with the following
passage from the Explanatory Memorandum that accompanied the Migration Reform Bill 1992:

"`Substantial justice' is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words."

I agree with Foster J in Yao-Jing Li that para 420 (2) (b) requires that the RRT must come to grips with the substance and merits of an application before it. His Honour said:

" ... the term `substantial justice' is concerned with the decision of the issues raised in the case rather than the process of deciding them." (at 39)

If the last part of this passage is correct, and in any event for reasons given elsewhere, with respect I disagree with his Honour's conclusion that "[a] failure to [act in accordance with substantial justice] would be a non-observance of a procedure required by the Act and reviewable under s 476 (1) (a)" (also at 39).

On the other hand, if, contrary to my view, para 420 (2) (b) lays down a procedure, it lays down a requirement of procedural fairness, non-compliance with which is not a ground of review because of para 476 (2) (a) of the Act. Again, this suggests that the legislature did not intend para 476 (1) (a) to embrace the standard which para 420 (2) (b) imposes.
I do not find it appropriate to consider whether non-observance of para 420 (2) (b) would always, or might sometimes, establish one or more of the other grounds of review referred to in sub-s 476 (1) (as to para 476 (1) (d) and (e) which are relied on by Mr Sun, see below). I note, however, that in Yao-Jing Li, Foster J relied on para (c) as well as para (a) of sub-s 476.

Again, I do not need to resolve the issue of construction finally, because, the Smidt Tribunal did act according to substantial justice and the merits of the case in connection with the making of its decision. The numerous attacks made upon the course which it followed are dealt with later. In particular, however, I do not think that the Smidt Tribunal's having proceeded by way of a hearing de novo shows that it did not act "according to substantial justice and the merits of the case."

1.2 Section 416
When Mr Sun applied for a review of the delegate's decision made on 11 February 1994 that he was not a refugee, he applied for review of an RRT-reviewable decision (para 411 (1) (a) of the Act). That application was determined by the Fordham Tribunal. When Mr Sun applied for a review of the delegate's decision made on 24 November 1994 refusing to grant him a protection visa, he again applied for review of an RRT-reviewable decision (para 411 (1) (c) of the Act). That application was determined in the first instance by the
Ransome Tribunal, but upon the setting aside of the Ransome Decision, at least the matter the subject of that application for review was remitted to the RRT and came before the Smidt Tribunal. Accordingly, the conditions of the availability of the discretion given by s 416 were satisfied, and the Smidt Tribunal:

"(c)[was] not required to consider any information considered in the earlier application [to the Fordham Tribunal] ...;

(d)[was entitled to] have regard to, and take to be correct, any decision that the [Fordham] Tribunal ... made about or because of that information."

Mr Sun submits that the Reasons for Decision of the Fordham Tribunal contain a "decision" or "decisions" in his favour which the Smidt Tribunal was bound to take to be correct. According to the submission, the supposed decision or decisions are a finding or findings of fact in his favour in relation to his involvement in pro democracy activities in Beijing and Foshan. Mr Sun emphasises, for example, the Fordham Credibility Acceptance which it is convenient to repeat:

"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." (at 12)

This passage is not expressed as a "finding". There are,
however, other passages in the Fordham Tribunal's Reasons for Decision which, expressly or implicitly, constitute findings in conformity with Mr Sun's evidence, generally to the effect of this passage. The following are examples:

"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. ...

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, ... 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." (at 12-13)

"It is accepted that the Applicant carried news of proposed rallies and demonstrations to his class of thirty students and that he encouraged and went together with them on two or three occasions. However, it is clear from his account that he was in no way involved with the organisation of the actual demonstrations and, in fact, when questioned on the organisers on one occasion he stated he did not know who they were." (at 13)

"In regard to the march on the 27th of April, ... [t]he Tribunal finds that his presence ... was of no particular political significance. He was so removed from the organisers that, at the hearing, he said he could not remember who the speakers were nor did he know who the organisers were." (at 14)

"The Tribunal finds that the risk of persecution from this action [in Guangdong Province, meeting
with friends to discuss political matters and pasting articles of a political nature for the public to see] is indeed remote and insubstantial." (at 16)

"The Tribunal finds that the fact that the Applicant's parents have been questioned about his whereabouts does not, of itself, indicate a chance of persecution." (at 16)

"The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant [sic - 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." (at 17)

Further, Mr Sun and his representatives were responsible (I use the word not to attribute "blame" but to indicate
causation as a matter of objective fact) for much of the delay after 5 October 1995. First, the RRT first requested production of the photographs on 5 October 1995, but the black and white photographs had still not been produced as at 3 November. As a result, the RRT did not receive the report from the Document Examination Unit on the photographs until 9 November. Secondly, the submissions made by Mr Sun's representatives were lengthy and detailed, and would have required careful and time-consuming consideration by the Member. Thirdly, there was some confusion as to whether or not Mr Sun would attend a hearing. A hearing scheduled for 4 December was cancelled, apparently because Mr Sun had, on 29 November, indicated that he would not attend. It seems to have been for this reason that the First Adverse Matters Letter, which outlined concerns that would otherwise have been taken up with Mr Sun at that hearing, was not sent to Ms Le until 8 December. Following the hearing on 18 December, Ms Le forwarded four further sets of written submissions, two of which were lengthy and detailed. Ms Le sought, and was granted, an extension of time to prepare final submissions. Ms Le requested further investigations by the RRT as late as 14 January 1996, and responded to adverse matters as late as 24 March.

A little over seven months elapsed between Beaumont J's order remitting the matter to the RRT and the Smidt Decision. In the light of the delays caused by the Department in providing material, the delays caused on Mr Sun's side, the length and
detail of the submissions made on behalf of Mr Sun, and the complexity of the case generally, I do not think that there was delay by the RRT at all, and certainly no delay of such proportions as to indicate somehow that the Member was biased against Mr Sun.

"6.15The unreasonableness of the deadline for further submissions set by the Tribunal in its letter of 8 January 1996 having regard to the circumstances in which that letter was transmitted to the Applicant as recorded in the Migration Agent's letter of 14 January 1996."

In a letter to the RRT dated 19 December 1995 Ms Le requested further time to prepare final submissions because she had been unable to research properly the matters raised in the "First Adverse Matters Letter". Ms Le stated:

"On Mr Sun's behalf, may I express my gratitude that the Tribunal is eager to make a decision quickly. However, it is plainly obvious that on the present state of the evidence [there appeared a footnote, the text of which read And in particular where Mr Sun has been unwilling or unable to give evidence], and having regard to the observations of the Tribunal during the hearing, that the decision is likely to be adverse to Mr Sun. In those circumstances it is imperative that I be given sufficient time to seek to assemble other material that may address the Tribunal's concerns. ... I submit that the Tribunal should not use a concern about the length of Mr Sun's detention as a basis for refusing me an opportunity to properly put his case..."

The RRT responded to this request as follows in a letter dated 8 January 1996, the "Second Adverse Matters Letter":

"You have requested additional time to conduct research and provide information to rebut adverse matters which you suggest have only recently been raised by the Tribunal. It is unclear which particular matters you wish to research. Mr Sun's identity and travel to Australia are issues which can only be addressed by Mr Sun himself. The Presiding Member's concerns regarding Mr Sun's participation in events in 1989 were raised in the letter dated 8 December 1995 and addressed in your submission on 18 December 1995. The issue of the current risk to participants in 1989 was first raised with Mr Sun during his interview with the Department in January 1994... Similar findings were made in [the Fordham Decision]. The Presiding member again raised these concerns in her letter of 8 December 1995 and at the hearing.

It appears that Mr Sun and his representatives have had ample opportunity to respond to the adverse matters raised by the current Tribunal...

The Presiding Member asks that you provide any additional evidence ... or submissions ... by close of business on Monday 15 January 1996. Further extensions of time will only be considered if you provide a detailed account of the matters into which you wish to conduct additional research and how long you anticipate this research will take by this date."

On 14 January Ms Le wrote to the RRT. The letter included her final submissions, but complained about the refusal of her request for further time. Ms Le explained that she had not received the RRT's letter dated 8 January until 11 January and had been able to consider it closely for the first time only on 12 January. Ms Le sought a further extension of time. On 16 January, Ms Le was advised that she had been granted an extension of time to 9 February.

I reject Mr Sun's submission that the initial refusal of Ms Le's request for additional time indicates bias. Ms Le's letter of 19 December 1995 was the third written submission she had made and her final submissions would be the fourth. The importance of resolving Mr Sun's case quickly had constantly been emphasised by his own representatives. The Member was entitled to disregard Ms Le's suggestion that the urgency was being used as an excuse to prevent her from presenting Mr Sun's case properly. Contrary to Mr Sun's submission, the fact that the extension of time was ultimately granted does not indicate that at the time the extension was first refused, the Member was so pre-occupied with the case against him that she was unable to recognise that there were good reasons for the request. The extension was granted for reasons different from those for which it was initially sought.

"6.16The manner in which Tribunal approached the acquisition of the Applicant's Tiananmen Square photographs and the return of those photographs."

On 5 October 1995 the RRT contacted Ms Le by telephone and requested that the prints and negatives of the photographs which Mr Sun had carried with him when he entered Australia be sent to the RRT for examination. On 6 October, Ms Le wrote to the RRT recording her understanding of the telephone conversation the previous day. The letter stated that Ms Le had offered to bring the original photographs and negatives with her to the hearing, and that she had never refused to provide anything to the RRT. The letter continued:

"It was therefore ... a total surprise to me to hear from you that the Member was going to supoena [sic] me to `hand over' the photographs (negatives?)."

The letter repeated that Ms Le intended to bring the photographs and negatives to the hearing, but stated that they could be made available to the RRT earlier if required.

On the same date, 6 October, the RRT issued a summons to Ms Le requiring production of the photographs and negatives, and wrote to Ms Le explaining that the Member required the prints and negatives prior to the hearing and advising her that the summons had been issued.

On 9 October, Mr Jackson of Walsh James wrote to the RRT, advising that Ms Le had advised the RRT that she would bring the photographs and negatives to a hearing and that Mr Sun had no objection to making them available. The letter continued:

"... given that the Tribunal has already been provided with high quality laser colour photocopies of the photographs, Mr Sun's legal advisers do not see how there could be any conceivable need for access to the originals unless the Tribunal had in mind reconsidering whether Mr Sun ought be believed in what he says about his activities in China. Our disquiet has been heightened by the terms of your letter to Marion Le which in terms states that the originals are required `so that their authenticity can be checked and, if necessary, the results of these investigations discussed with Mr Sun at the hearing'. We trust that the reference to `the hearing' rather than `a hearing' does not reflect a pre-judgment of the matter `on the papers'.

Would you please advise in what way the Tribunal intends to `check' the authenticity of the photographs - does the Tribunal merely wish to
verify that the originals and negatives in fact exist? To the extent that the Tribunal wishes to have them examined by an expert we wish that such examination occur in the presence of an expert retained by the Applicant. Moreover, it would not be necessary for the experts to have access to all of the photographs and negatives. We are happy for the Tribunal to select the photographs and negatives for that purpose.

We utterly repudiate any suggestion that the photographs are not authentic and note that this is the first occasion that either the Minister or the Tribunal has raised this as an issue."

In response to the summons issued on 6 October, Ms Le produced nine of the "at least 28" photographs which had been in Mr Sun's possession when he had entered Australia. The RRT wrote to Ms Le on 20 October requesting that the remaining photographs and negatives be produced. On 29 October, Ms Le wrote to the RRT asserting that she had complied with the summons, which required production of only photographs taken in June 1989. The letter stated:

"I wish to state again that the need for a summons in this matter at all remains a matter of concern to me and my client. We have never sought to prevent the Tribunal and/or the Department examining the photographs and negatives."

On 3 November, the RRT wrote to Ms Le again requesting that the remaining photographs be produced. It appears that the remaining photographs were produced shortly after 3 November, the report of the Document Examination Unit being dated 9 November 1995.

I do not think that the manner in which the Member sought to gain access to Mr Sun's original photographs and negatives indicates that she was biased against him. There was apparently a misunderstanding between Ms Le and the RRT during the telephone conversation on 5 October as to Ms Le's willingness or otherwise to produce the photographs. It appears from Ms Le's letters dated 6 October and 29 October that she was offended by the issue of the summons issued to her, notwithstanding that the RRT also sent a letter explaining why the photographs were required. Furthermore, it is apparent from Mr Jackson's letter dated 9 October that Mr Sun's representatives were offended at the suggestion that his claims should be investigated. However, the investigation was conducted by the Member in the course of her properly carrying out her functions, not as a result of a pre-determination to find against Mr Sun.

"6.17The treatment giving [sic - given] to the Applicant's photographs in the Decision."

In her Reasons for Decision, the Member noted that the Document Examination Unit report indicated that the photographs had not been taken using a standard 35mm camera, and that the Member had wished to discuss the circumstances in which the photographs were taken with Mr Sun at the hearing (at 18). The Member also referred to the various claims made by Mr Sun's representatives as to the value of the photographs (at 18-19). She noted that there were similar photographs in the public domain, and that the RRT had provided Ms Le with
photocopies of some examples. She did not find it necessary to make a finding as to whether Mr Sun had taken the photographs himself:

"... even if I accepted that Mr Sun had taken these photographs himself, I would find the likelihood that the Chinese authorities pursued him until at least early 1993 with the vigour he has claimed to be fanciful." (at 60)

It was open to the Member to doubt Mr Sun's claims about the photographs on the basis of the report of the Document Examination Unit and his refusal to discuss the circumstances in which they had been taken. Her doubts and her findings, on other grounds, that Mr Sun was not pursued by the Chinese authorities down to 1993, were not "perverse" and are not evidence of actual bias.

"6.18The refusal of the Tribunal to provide the Applicant with access to evidence relied upon by the Tribunal as requested by the Migration Agent."

In a letter dated 19 December 1995, Ms Le requested that the RRT provide her with copies of publications referred to in the First Adverse Matters Letter of 8 December 1995. In a letter dated 8 January 1996, the RRT advised Ms Le that it was not possible to provide her with copies of those publications, but that they were publicly available. On 14 January, Ms Le wrote to the RRT seeking access to one of the publications, "Black Hands of Beijing", or information as to where it was
available, advising that she had been unable to locate it in the public domain. In her final submissions on behalf of Mr Sun, Ms Le complained that she had still not had access to some of the publications relied on by the RRT. In particular, Ms Le said that "Black Hands of Beijing" was available only in the State Library of New South Wales, a non-borrowing institution, and that she had been hampered by being unable to consider it properly.

I do not consider that the Member's failure to provide copies of, or access to, material which is publicly available, albeit in non-borrowing libraries, is evidence of bias. The RRT's resources are not unlimited.

"6.19The nature of the response by Ms Smidt to Marion Le's application that she disqualify herself on the grounds of reasonable apprehension of bias made during the hearing on 18 December 1995."

Mr Sun complains that Ms Le was repeatedly interrupted while the application was made. Ms Le also made this complaint in a letter to the Tribunal dated 14 January 1996:

"The tape of that hearing will reveal that the Presiding Member repeatedly interrupted my submission in an aggressive and argumentative fashion. I was taken aback by the Presiding Member's response and did not finish outlining the grounds of that application. Mr Sun, in his chronically depressed state, has believed for some time that Tribunal is actually biased against him. Having regard to the sorry history of this matter I have now come reluctantly to the view that his belief is justified. The various matters in the Tribunal's Letter which are here addressed but in
particular the matters referred to in paragraph 2 (when regard is had to the delay of the Tribunal in responding to my letter of 19 December) have in no small way led to the crystallisation of my view."

The transcript and tape of the hearing reveal that Ms Le's application that the Member disqualify herself took the form of an exchange between Ms Le and the Member, rather than uninterrupted submissions. The Member sounded at times somewhat taken aback by the submissions made by Ms Le, and at other times somewhat exasperated. It is possible to think, with the benefit of hindsight, that a better course may have been for the Member to interrupt less than she did. At no stage, however, was she aggressive or argumentative towards Ms Le. On the contrary, she was courteous throughout, and allowed Ms Le ample opportunity to make her submissions. The Member attempted to explain her role of testing, in order to satisfy herself about, Mr Sun's claims. I do not find evidence of bias in the Member's reaction to the request that she disqualify herself.

4.4 Other matters relied on as evidence of actual bias
4.4.1 Disingenuous correspondence
Mr Sun submits that correspondence between the RRT and his representatives indicates that the Member was biased against him. First, Mr Sun submits that the RRT's letters dated 5 October and 3 November 1995 indicated that a favourable decision on the papers might be made, while the Member had in fact already discarded that possibility. In support, Mr Sun
points to investigations carried out by the RRT which must have been for the purpose of questioning him at a hearing. (The same issue was raised in para 6.6 (a) of Mr Sun's application for an order for review - see above.) Mr Sun also relies on the facts that the advice from the Department's Document Examination Unit that the photographs and negatives were genuine did not lead to a cancellation of the hearing, and that the matters raised in the First Adverse Matters Letter were ultimately determined adversely to him.

Secondly, Mr Sun submits that the RRT's failure to inform Ms Le in its letter dated 13 March 1996 that the Member had cancelled the investigation relating to the occupants of 159 Hai Zhu Road is evidence of bias on her part. In a letter dated 28 February, the RRT advised Ms Le that the RRT had not previously requested an investigation as to the occupants of 159 Hai Zhu Road because, even if Mr Sun's parents did reside there, this would not necessarily indicate that the Chinese authorities had lied. Mr Sun submits that this statement is "disingenuous" because the Member realised the broader significance of the issue. According to the submission, a positive outcome to the inquiry would "completely establish" Mr Sun's identity.

The Minister submits that Mr Sun's submission that the Member was biased because she prepared for a possible hearing before making and communicating a formal decision that a hearing was necessary, is without substance. I accept this submission
(see also my reasons for rejecting particular 6.6 (a) earlier).

Although the Document Examination Unit found that the photographs and negatives were genuine, its report gave rise to serious questions as to whether Mr Sun was the photographer. The Member wished to question him about the photographic equipment used. The fact that she did not cancel the hearing after receiving the Unit's report does not indicate bias. The fact that the matters raised in the First Adverse Matters Letter were subsequently determined adversely to Mr Sun does not show bias either.

In my opinion, the RRT's failure to advise Ms Le of the Member's decision to cancel the request that DFAT investigate whether Mr Sun's parents lived at 159 Hai Zhu Road is not evidence of bias. While the RRT had acknowledged that a positive outcome to the inquiry could help in establishing Mr Sun's credibility, the RRT's letter of 28 February 1996 to Ms Le indicated that the Member considered that the chief or only purpose of the inquiry was to determine whether the Chinese authorities had lied in stating that "the name and address does not exist". Once it was established that the address that Mr Sun had provided to the Chinese authorities was incomplete, the Member concluded that they had not lied and that there was no need to investigate further. The Member appears to have assumed that it would be obvious to Ms Le that the investigation would not be pursued in the light of the
information about the street numbers. It is, perhaps, unfortunate that the Member's position was not spelled out more precisely in the letter dated 13 March 1996, but the omission is not evidence of bias.

Mr Sun's submission that the Member realised that if his parents were found to be living at 159 Hai Zhu Road his identity would be "completely established", is simply wrong. The Member had acknowledged that this would "help in establishing [Mr Sun's] credibility"; in other words, it would indicate that Mr Sun was telling the truth about his parents' address. At no stage did the Member indicate that it would also follow that she would accept that Mr Sun was a person who had participated in the 1989 pro-democracy movement in Beijing and subsequently fled in hiding to Foshan.

4.4.2 Tone of the Reasons for Decision
Mr Sun says that it may be inferred from the fact that the Member's Reasons for Decision contain some sixty adverse remarks about him compared to two favourable remarks, that she was biased against him. However, the Minister has identified, correctly in my view, a further thirty remarks favourable, or arguably favourable, to Mr Sun.

It is unnecessary to consider all of the passages relied upon by Mr Sun and the Minister respectively. The adverse remarks do not support an inference that the Member was biased; rather, they express her rejection of Mr Sun's claims. I will
not repeat the discussion above in relation to the allegedly extreme terms in which the Member's findings were expressed.

4.5 Conclusions on actual bias
In my opinion, actual bias may be established on an overall view of relevant factors, although it would not be established by any of them singly. I have considered all of the matters referred to by Mr Sun as a whole, as well as individually. Viewed as a whole, as well as individually, they do not establish actual bias, in my view.

The Member decided to conduct a de novo review. In my opinion she was entitled so to decide. Like Mr Fordham, she had doubts about Mr Sun's claims. She sought to test them. Ms Le appears to have viewed both the decision and the testing by the Member as evidence of bias on her part. But it seems that at the foundation of the charge is the fact that Mr Sun was not to offer any explanation, elaboration or clarification. Short of abdicating her responsibility and finding that Mr Sun was a refugee on the basis of sympathy, once the Member had decided to conduct a review de novo and to explore Mr Sun's claims, she could follow no course substantially different from that which she took.

I have listened to the tape recording of the hearing on 18 December 1995. While there were occasions when the Member interrupted Ms Le, this was nothing more than part of an ordinary exchange. Of course, both the Member and Ms Le had
to work without the benefit of any meaningful participation in the hearing by Mr Sun.

Mr Sun has not established that the Smidt Decision was affected by actual bias. Accordingly, his application fails in so far as it is founded on para 476 (1) (f) of the Act.

Ground 5."that there was no evidence or other material to justify the making of the decision": para 476 (1) (g) of the Act (para 7 of amended application for an order of review).

Sub-section 476 (4) of the Act provides:

"(4) The ground specified in paragraph (1) (g) is not to be taken to have been made out unless:

(a)the person who mae the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

According to Mr Sun's amended application,

"There was no evidence or other material to justify the making of the Decision in that the decision was based on the existence of a particular fact, and that fact did not exist."

No independent submissions were directed to establishing that the Smidt Decision was based on a particular fact which did not exist. Accordingly, it is unnecessary for me to consider this ground. However, I note my view that there was material before the Member to justify the making of the decision that she made.

CONCLUSION
Mr Sun is unsuccessful on each ground of his amended application for review. There will be an order that his application be dismissed with costs.

These Reasons for Judgment are not given in proceeding NG 443 of 1995. That proceeding remains to be disposed of. The Minister submitted that I should dispose of it and Mr Sun submitted that I should not do so. Either party is at liberty to have it listed by arrangement with the Associate to Beaumont J or my Associate, at an appropriate time, for further argument on this question in the light of the foregoing reasons.

I certify that this and the preceding 183 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:6 May 1997

Heard: 3, 4, 5 June, 2 August 1996

Last written

submission: 12 August 1996

Place: Sydney

Decision: 6 May 1997

Appearances: Mr D F Rofe QC with Mr M J Lawler of counsel instructed by Jackson Smith appeared for the applicant.

Mr M H Tobias QC with Mr N J Williams of counsel instructed by The Australian Government Solicitor appeared for the respondent.

[1997] FCA 324

6 MAY 1997