SZEQH v Minister for Immigration
[2005] FMCA 1613
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQH v MINISTER FOR IMMIGRATION | [2005] FMCA 1613 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 441A, 474, 483A
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
| Applicant: | SZEQH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3203 of 2004 |
| Delivered on: | 22 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 31 October 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3203 of 2004
| SZEQH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 28 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
31 August 2004 and handed down on 28 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 8 April 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEQH”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 3 March 2004. On 2 April 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-9) (“CB”). On 8 April 2004 the delegate refused to grant a protection visa (CB pp.11-23) and on 7 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.24-32).
The applicant claims that he came from a Christian family and he had joined the underground Shouters church in the People’s Republic of China in May 1998. The applicant claimed he was arrested for that reason in September 2000 and that he was detained for one month. He stated that he had organised underground religious activities from March 2001 and December 2002 and, as a result, he was again arrested and detained in December 2002 to March 2003. The applicant claimed that he eventually managed to leave China with the assistance of other group members and since arriving in Australia he has heard that the authorities have been searching for him (CB p.18).
Applicant’s claim
The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent by Ms L Clegg and
I adopt paragraphs 7-10 for the purpose of this judgment:
The applicant’s claims are set out in a statutory declaration provided with his visa protection application (extracted in the supplementary Court Book at 1-5). The applicant claims:
a)he was raised as a Christian by Christian parents. As an adult he studied the bible with the assistance of his parents and occasionally visited the official Christian churches;
b)he first became involved in the ‘Shouters’ underground Christian church group in May 1998. Mr Sun, a former colleague who helped him to obtain new employment, introduced him to a Shouters gathering at his home. The applicant continued to attend Shouters bible study groups. After a period of training, the group leader, Mr Wang, allowed the applicant to assist him in the gatherings. The applicant’s duties were to edit, print and bind religious promotional materials;
c)in September 2000 the applicant and six other bible study group participants were arrested whilst attending a bible study group meeting. The applicant was detained for one month. Mr Wang was arrested and sentenced to a five year imprisonment. Mr Sun was arrested and sentenced to one year labour reform. The applicant was only detained for one month because neither Mr Wang or Mr Sun revealed the extent of his involvement in the Shouters group;
d)from March 2001, the applicant began to actively re-organise the Shouters’ activities with the assistance of Ms Yang, a friend of the wife of Mr Wang. In order to avoid detection, meetings were held at different locations;
e)in December 2002 the applicant was again detained after being observed by plan clothes police officers distributing Shouters promotional material at an official church. He was detained for three months and mentally and physically tortured. He was released at the end of three months after Ms Yang bribed a senior PSB police officer;
f)after his release the applicant set up a ‘secret propaganda centre’ from where the applicant organised thousands of promotional materials;
g)in October 2003 Mr Sun ‘went missing’. As Mr Sun knew of the applicant’s involvement in the secret propaganda centre, this worried the applicant. Ms Yang’s son was involved in a travel agency and arranged for the applicant to obtain a visa; and
h)on 1 March 2004 Mr Yang notified the applicant that his mother had been arrested and asked the applicant to leave the country on that day. The applicant left China the following day. When he arrived in Australia he contacted Mr Yang who informed him that the propaganda centre had been discovered and sealed by police. The applicant was later informed by his wife that the police had visited his home to arrest him, and that his wife had been subjected to investigation by the PSB.
The applicant provided a letter with his application to the Tribunal containing a response to the decision of the delegate and the reasons why he disagreed with it (CB 28-32). The applicant also provided a written response (CB 39-43) to a letter from the Tribunal requesting further information (CB 35).
The Tribunal also received an unsolicited letter from a Mr Sun (‘Sun’) who expressed some ambiguous concerns about having directly assisted the applicant to enter Australia on a business visa (CB 37). The Tribunal independently interviewed Sun (CB 52, 69.8).
After the hearing, the Tribunal received a letter from the applicant’s advisor containing a letter from the applicant’s pastor confirming the applicant had attended some church meetings on Sundays (CB 48-49).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings and reasons was contained in the written submissions prepared by Ms Clegg and I adopt paragraphs 11-14 for the purpose of this judgment:
At the hearing the Tribunal asked the applicant a number of questions. It identified for the applicant a number of difficulties it had with his credibility. The matters raised with the applicant included:
a)why letters sent to the applicant by the Tribunal had been returned;
b)the letter received from Sun indicating that the applicant was not a technology manager and that he had paid someone 55,000 yuan to come to Australia;
c)whether the applicant had any supporting documents;
d)why the applicant had no difficulty leaving China if he was of interest to authorities;
e)inconsistencies in the applicant’s claims concerning his detention and whether he was an ordinary or ‘key member’ of the Shouters group;
f)inconsistencies concerning the date upon which the applicant had said he had signed a document agreeing not to be involved in any religious activities;
g)how and in what circumstances the applicant had lost his passport;
h)how the applicant had learned about the discovery by the Chinese police of the secret propaganda centre; and
i)details concerning where and when the applicant attended religious services in Sydney.
The Tribunal then noted:
a)the applicant had changed his oral testimony (CB 70.8);
b)the applicant had given the Tribunal the impression that he had ‘hastily fabricated his claims and tried to tailor his responses to the Tribunal when inconsistencies were pointed out’ (CB 70.8);
c)examples of the inconsistencies in the applicant’s claims and evidence (CB 70.8-71.8);
d)the applicant had not provided any supporting documents and that it was not convinced by the applicant’s explanation about this;
e)it had ‘credibility concerns’ about the applicant;
f)it was dissatisfied with the fact that the applicant had lost his passport, given that the Tribunal had sought a full copy of the applicant’s passport in its letter of 10 June 2004.
The Tribunal found that the applicant was not a credible witness. Having regard to the evidence as a whole, the Tribunal found that the applicant had not genuinely been involved in any Shouters group,. either in China or Australia. The Tribunal concluded that the applicant had not been tortured, detained or mistreated in any way. The Tribunal did not accept the applicant had obtained his passport with assistance, or that he would be subject to investigation upon his return to China as a result of the police finding out about the ‘secret propaganda centre’ (which the Tribunal did not accept in any event).
The Tribunal concluded that the applicant had not suffered any Convention related harm and did not accept that there was a real chance of the applicant being harmed in China in the reasonably foreseeable future.
Application for review of the Tribunal’s decision
On 28 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 24 January 2005 the applicant filed an amended application. The amended application made reference to an amalgam of legal issues, interspersed with extracts from the Act and submissions going to the merits of the applicant’s case. Parts of the Act and the statutory declaration sworn by the applicant on 1 July 2004 have not been reproduced. The grounds of the application are as follows:
There was an error of law in the Tribunal’s decision constituting a jurisdictional error
There was procedural error in the Tribunal’s decision constituting an absence of natural justice
Particulars
- On 5th July 2004, a letter written by a person called “Ding Ning Sun” was received by the Tribunal (“Sun’s letter”), and the letter has, in fact, included some negative information which is apparently directly in relation to my application with the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) (CB 37).
It was happened after the Tribunal sent me a letter on 10th June 2004 (CB 35), in which I was requested to provide additional information; and just one day before I lodged my supplement with the Tribunal on 6th July 2004 (CB 38-43). It was also eight (8) days before the Tribunal sent me a letter on 13th July 2004 (CB 44-45); in which I was informed that a hearing had been arranged for me.
To my understanding, according to Migration Act 1958 (the ‘Act’), the Tribunal should comply with the following obligations:-
Section 424 Tribunal may seek additional information
[not reproduced]
Section 424A Applicant must be given certain information
[not reproduced]
Section 441A Methods by which Tribunal gives documents other than the Secretary
[not reproduced]
According to the following hearing conducted by the Tribunal (CB 67-69), the Tribunal has, apparently, regarded the Sun’s letter as one of important information in making its decision on the review. Therefore, it should be the obligation of the Tribunal, based on Section 424 of the Act, to invite me to make my comment on Sun’s letter. Such an invitation must be by one of the methods specified in Section 441A of the Act.
Unfortunately, the Tribunal failed to do so, even if it received the Sun’s letter after it sent me the first letter for additional information on 10th June 2004; the Tribunal failed to do so after it received any additional information on 6th July 2004; and it failed to do so before it sent me the second letter for hearing on 13th July 2004.
It is definitely strong evidence that the Tribunal, intentionally, refused to comply with its obligations under Section 424 of the Act.
The Tribunal indeed mentioned Sun’s letter, verbally, during the hearing. However, the Tribunal apparently failed to comply with its obligations under Section 424A of the Act. In fact, just simply through reading such a letter to me during the hearing, it must be impossible for me to understand the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and particularly, it is definitely impossible to ensure, as far as is reasonably practicable, that I will understand why it is relevant to the review. Such a situation, how could I make my comment on such an important letter which has included such important information?
Moreover, the Tribunal failed to arrange a cross-examination between the author of the Sun’s letter and me, even if
I clearly required the Tribunal to do so in my advisor’s letter dated 23rd July 2004.
- With Sun’s letter, the Tribunal, before and during the hearing, has in fact carefully made a trap for me; and intentionally made it impossible for me to properly, clearly and completely provide my oral evidence. Solely for this purpose, the Tribunal, at the beginning of the hearing, suddenly and directly read Sun’s letter to me, and gave me a sudden attack and made me feel huge mental and psychological pressure.
- It is the fact that the Tribunal failed to give me a fair hearing. The Tribunal has neither given me any fair opportunities to clarify my claims nor to provide complete oral evidences. The Tribunal, in fact, strictly restricted my answers or my statement at the hearing before the Tribunal, and the Tribunal intentionally looked for or sought pieces of evidences, or intentionally cut my claims into small pieces solely for the purpose to refuse my claims.
- The Tribunal doubted my claims that I have lost my passport, but the Tribunal failed to take any step to investigate or to confirm my claims with relevant authorities in Australia, even if I have provided the Tribunal the Claim Number with the Federal Police.
- The Tribunal particularly failed to consider my claims provided to the Tribunal (CB 38-43) before the hearing as follows:
[contents of statutory declaration of 1 July 2004 (CB 39-43) not reproduced]
In conclusion, I believe to be a person to whom Australia has protection obligations under the United Nations Refugees Convention as amended by Refugee Protocol; and I do not think that the Tribunal has considered all of my claims fairly and carefully. (Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. The applicant attended a directions hearing on 9 November 2004 and consented to Short Minutes of Order at that time requiring him to file and serve written submissions and any evidence upon which he proposed to rely at the hearing. However, these orders were not complied with by the applicant. During the hearing, the applicant raised submissions in respect of the Court listening to the hearing tapes in support of the submission that he was making to the Court. No affidavit containing a transcript of the Tribunal’s hearing tape had been filed nor was the hearing tape present in Court. The applicant made detailed oral submissions during the hearing in support of his amended application.
Counsel for the respondent filed written submissions which were supplemented by oral presentations during the hearing.
Reasons
Counsel for the respondent submitted that the amended application, although interspersed with extracts from the Act and submissions going to the merits of the applicant’s case, could be conveniently distilled to five grounds of review. I intend to adopt the respondent Counsel’s submission as an appropriate course to address the issues raised by the applicant. The five grounds are:
a)the Tribunal failed to comply with s.424 of the Act in connection with the letter to the Tribunal from Ding Ning Sun (“the Sun letter”);
b)the Tribunal failed to comply with s.424A of the Act in connection with the Sun letter;
c)the Tribunal failed to comply with s.441A of the Act in connection with the Sun letter;
d)the Tribunal failed to afford the applicant procedural fairness in connection with the Sun letter;
e)the Tribunal was biased in the manner it conducted the hearing;
f)the Tribunal failed to consider the applicant’s claims.
The letter from Ding Ning Sun (“the Sun letter”) was forwarded to the Department by Ms Sun on her own initiative after becoming concerned about three visitors from China who she had invited to Australia in response to a request by a business associate to enable the parties to undertake some research into digital video recording systems. After the visitors’ arrival, Ms Sun became concerned about the real purpose of their visit and initially contacted the Tribunal by telephone, but due to language difficulties put her concerns in writing, being the letter addressed to Ms Christan Ryan dated 2 April 2004 (CB p.37). The details of who Ms Sun initially made contact with regarding this issue, resulting in her letter to Ms Ryan, was not provided. However, it was clear that the letter was initiated by Ms Sun and not by anyone within the Department or at the Tribunal. The Tribunal, having received this unsolicited letter, sought further information and wrote to Ms Sun on 25 August 2004 acknowledging receipt of her letter of 2 April 2004 and inviting Ms Sun to attend an interview (CB p.52). That action is permitted under the provisions of s.424 of the Act. Section 424 is concerned with the circumstances whereby the Tribunal obtains information of its own volition. It may be any sort of information and may include information from a person where that person is invited to give information: s.424(2) of the Act. Section 424 entitled the Tribunal to contact Ms Sun which it did by its letter dated 25 August 2004. It is evident that the letter to Ms Sun complied with s.424(3)(a) and s.441A.
I accept the respondent’s submission that if the applicant is suggesting in some way that the Tribunal invited Ms Sun to provide information in the Sun letter (or that the Tribunal in some way sought out the information contained in the Sun letter), this is misconceived. Neither the amended application nor the oral submissions of the applicant clearly articulated this argument. However, there was a strong inference that this was the basis for the argument and the argument would need to be based on that premise to succeed. It was clear from the words contained in the first paragraph of the Sun letter that the Tribunal was contacted by Sun on her own volition. The circumstances surrounding the Tribunal’s receipt of the letter is recorded in the decision as follows:
“The Tribunal put to the applicant that it had received information (Folio 21, RRT file), namely a letter dated 2 April 2004 indicating that he is not a Technology Manager and that he had paid someone 55,000 Yuan to come to Australia.” (CB p.67)
There is no evidence before this Court to indicate that the Tribunal initially attempted to contact Ms Sun or sought information from Ms Sun. The explanation for the material being made available to the Tribunal was explained in the opening paragraph of Ms Sun’s letter of 2 April 2004. No evidence was put to this Court to suggest that the circumstances surrounding the supply of this information was different in any respect. Consequently, s.424 has no application to the Tribunal receiving the Sun letter and this ground cannot be sustained.
The second ground was based on the contention that the Tribunal failed to comply with s.424A of the Act in connection with the letter from Ms Sun. Section 424A(1) of the Act requires the Tribunal to give to the applicant particulars of information “that the Tribunal considers would be the reason or part of the reason for affirming the decision under review”. In the applicant’s amended application he made the following statement:
“…the Tribunal has, apparently, regarded the Sun’s letter as one of important information in making its decision on the review.” (Amended application p.4, para 1)
Also within the amended application, the following statement is noted:
“The Tribunal indeed mentioned Sun’s letter, verbally, during the hearing. However, the Tribunal apparently failed to comply with its obligations under Section 424A of the Act.” (Amended application p.4, para 4)
In the Tribunal’s decision under the heading “Hearing”, which was held on 23 August 2004 in the presence of an interpreter and the applicant’s advisor from Pricilla International Co Pty Ltd, the Tribunal member raised the issue of the letter from Ms Sun (see extract at paragraph 14 above). This is the only reference to the Sun letter appearing in the Tribunal’s decision. In the section headed “Findings and Reasons”, there is no reference to the Sun letter as being the basis of any decision being reached by the Tribunal in respect of the applicant. I accept the respondent’s submission that the Tribunal was not required to provide particulars of information contained in the Sun letter because it was not the reason or part of the reason for the Tribunal’s decision.
I accept the respondent’s submission that the Tribunal relied upon the impression given by the applicant, the manner in which he gave his evidence, the absence of supporting documentation and inconsistencies (including internal inconsistencies) in his evidence. In effect, the Tribunal’s decision was based on a subjective appraisal of the applicant’s credit and despite the fact that, when determining such an assessment, the applicant should be given the benefit of the doubt in circumstances where the applicant is unable to substantiate all of his claims.
Most importantly the word “information” in s.424A(1) does not encompass the Tribunal’s subjective appraisal: VAF v Minister for Immigration & Multicultural & Indigenous Affairs per Finn and Stone JJ at [24(iii)]:
“… the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; at [25]; approved [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].”
To the extent that there was any reliance upon inconsistencies between the applicant’s evidence and the protection visa application, this does not constitute a breach of s.424A because it is the inconsistency itself which is the reason for the decision, and not the information contained in the protection visa application: SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs per Lindgren J at [23]. To the extent that the Tribunal relied upon credibility concerns, those credibility concerns cannot be said to have been created by the Sun letter, but rather by other deficiencies in the applicant’s application.
The third ground was that the Tribunal failed to comply with s.441A of the Act in connection with the Sun letter. This provision of the Act specifies the method by which the Tribunal gives documents to a person other than the Secretary. Once it has been established that the Tribunal is required to provide the applicant with a document, Part 7, Division 7A which contains s.441A specifies the method and manner in which documents are to be exchanged. I accept the respondent’s submission that the Tribunal was not obliged to provide the applicant with information concerning the Sun letter pursuant to s.424A(1) and (2) and consequently s.441A has no application. This ground cannot be sustained.
The fourth ground was that the Tribunal failed to accord the applicant procedural fairness in connection with the Sun letter. The manner in which the Tribunal deals with the Sun letter is subject to the operation of s.422B of the Act. The introduction of this section establishes that Division 4 of Part 5 of the Act now contains “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. No submissions were made by the applicant suggesting that any aspect of the provisions of Division 4 of Part 7 of the Act were not complied with. In this respect, I accept the respondent’s submissions that there was no evidence that Division 4 of Part 7 of the Act were not complied with.
Since the introduction of s.422B in July 2002, it is unnecessary to go beyond the provisions contained in Division 4 of Part 7. The common law procedural fairness has been afforded to the applicant in respect of the Sun letter and its contents. The common law rules of procedural fairness require that the applicant be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision being made: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah. As previously referred to in this judgment, the Tribunal during the hearing indicated to the applicant that it had received a letter from Ms Sun dated 2 April 2004 which raised particular issues in respect of the circumstance in which the applicant entered Australia. The applicant raised the complaint in his amended application:
“In fact, just simply through reading such a letter to me during the hearing, it must be impossible for me to understand the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and particularly, it is definitely impossible to ensure, as far as is reasonably practicable, that I will understand why it is relevant to the review.” (Amended application p.4, para 4)
The applicant complained that simply reading the contents of the Sun letter to him at the hearing was not enough. The respondent submitted that this was a concession that the letter was read to the applicant at the hearing and that this was more than enough to satisfy the rules of procedural fairness. I accept that submission and believe this ground of review cannot be sustained.
In respect of the fifth ground, the applicant claimed that the Tribunal was biased in the manner it conducted the hearing. To the extent that bias is alleged, it is a serious allegation and suggests personal fault on the part of the decision maker. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs at [43] the Full Federal Court stated that an allegation of bad faith must be clearly alleged and proved. Further, the authorities are clear that one cannot extrapolate bias from the existence of adverse findings alone. This was confirmed by His Honour von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [38]:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
I accept the respondent’s submissions that where the applicant relies upon written reasons in a decision under review to allege bias, which is the case here, the applicant is under an obligation to provide the evidentiary base for such a claim. No such submissions have been made and consequently this ground cannot be sustained.
In the sixth ground, the applicant claimed the Tribunal failed to consider his claims. This ground of review suggested the applicant misconceived the nature of the review function of this Court. The applicant, in his amended application, simply restated a large number of factual assertions which were advanced as part of the applicant’s claim. The Tribunal was required to address the applicant’s claim or its component integers. However, the applicant in this case had only one claim: that he feared persecution in China on account of his religious beliefs and activities. I agree with the respondent’s assertion that what appeared to be advanced by the applicant was a proposition that the Tribunal must consider and apparently provide reasons for either the acceptance or rejection of every assertion of fact made by the applicant. There is no authority for such a proposition. I agree with the contrary proposition that the Tribunal is required to consider the claim or the component integer of the applicant’s claim. Support for this approach is found in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs per French, Sackville and Hely JJ at [46]:
“It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.”
I accept the respondent’s submission that the Tribunal satisfactorily addressed the applicant’s claims in its findings and reasons and this ground of review cannot be sustained.
Conclusion
I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 November 2005
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