SZHBP v Minister for Immigration
[2008] FMCA 699
•29 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 699 |
| MIGRATION – Review of RRT decision – where Tribunal did not find applicant a credible witness on the basis of inconsistencies in evidence – whether statements made by Tribunal illogical, inconsistent and made selective use of information – whether cumulative effect of statements made by Tribunal amounted to apprehended bias – whether test for apprehended bias met. |
| Migration Act 1958 (Cth), ss.420, 420A, 424A |
| Minister for Immigration v Eshetu [1999] HCA 21 Buck v Bavone (1976) 135 CLR 110 Applicant S276/2002 v Minister for Immigration [2004] FCA 330 Minister for Immigration v Eshetu (1999) 162 ALR 577 NAAX & Anor v Minister for Immigration [2002] FCA 263 NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 Re RRT; Ex parte H [2001] HCA 28 VFAB v Minister for Immigration [2003] FCA 872 SZEOQ v Minister for Immigration [2006] FCA 117 Minister for Immigration v Jia (2001) 205 CLR 507 |
| Applicant: | SZHBP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3710 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 April 2008 |
| Date of last submission: | 16 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Griffiths SC |
| Counsel for the Respondent: | Mr M Izzo |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3710 of 2007
| SZHBP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is the third time that this applicant has sought review of decisions of the Refugee Review Tribunal upon an application for a protection visa filed on 3 August 2004. In this case the decision under review is one made by the Tribunal on 7 November 2007 following a hearing on 12 October 2007, after which, on 17 October 2007, a s.424A letter was written to the applicant and responded to by his migration agent.
The applicant is a citizen of the People’s Republic of China. He claimed that he was a self-employed lorry driver who, in June 2003, had been offered a job delivering building materials from Hui’an county to a construction site in Sanming city. The applicant gave the job to a friend, Mr Li, who needed the money because his mother required medical attention. It was said that Mr Li’s truck fell into a ravine as the result of avoiding another vehicle, and Mr Li had become a paraplegic. The person who was alleged to have caused the accident was the son of a powerful senior government official in Sanming city with contacts in the PSB. With the assistance of these contacts, the driver was not charged with causing the accident and Mr Li did not receive any compensation.
The applicant claimed that during the period between July 2003 and September 2003 he organised self-employed drivers to petition for basic rights and requested the authorities to reinvestigate Mr Li’s accident. He tried to approach lawyers to assist, but they would not do so. He contacted the local court in Sanming city, but it refused to accept his application. He then arranged a petition of other self-employed drivers and friends of Mr Li for the local government and then to the People’s Government in Fujian province. The petition was turned down on the grounds that the PSB had investigated the accident and had made its decision. At the end of September 2003 the applicant took 50 self-employed drivers to have a sit-in protest in front of the provincial government offices. The sit-in was ignored, save that the group were told that they should move on and would be subject to serious punishment if they remained there on National Day, 1 October. The applicant then organised another demonstration on 10 October 2003 at the intersection of the highway between Xiamen city to Fuzhou city. He claimed that about 100 people attended and distributed material to drivers who stopped, and had placards and banners to draw attention to themselves from drivers who were passing on the main road. The applicant considered the demonstrations had been a success because:
“many self-employed drivers even stopped their vehicles and stood together with us.” [CB27]
That evening, the applicant claims that he was taken away by the PSB and detained at a detention centre for 3 months, not being released until 31 December 2003. During that time he was questioned and tortured. He was asked to admit that he had organised anti-governmental political demonstrations, but he refused to do so. After a while he was left alone by the PSB and placed in a cell with common criminals who he believed had been told by the PSB to torture him from time to time. Eventually he agreed to sign a confession and was then released. The applicant claims that for the next 6 months he was constantly harassed by the PSB at his home. He decided that he should leave the country and made arrangements with a people smuggler. He claimed to have utilised a Republic of Taiwan passport which was given to him by the people smuggler at Shenzen airport. He did not travel directly to Sydney but came via Fiji. When he arrived in Australia the passport was taken from him. The applicant claimed that if he returned to China he would be the subject of further persecution as a result of his anti-governmental activities.
The Tribunal questioned the applicant about a number of matters, but I shall deal in these reasons only with those that are relevant for the purposes of the application. The first reference to questioning appears at [CB215] where the Tribunal notes that the applicant had told him that his original representative had not read the statement accompanying his original application back to him. The statement is in the form of a statutory declaration and is found at [CB25]-[28]. The Tribunal then noted that the applicant had been detained in October 2006 together with his brother, but had not mentioned his brother in his original application. The Tribunal then deals with the motor accident, which formed the basis of the applicant’s decision to become politically active. The applicant was not present when the accident took place but said that the information which he had about the accident had come from a person called the assistant driver who had jumped off the truck before it had fallen into the ravine and that he had received a minor injury. In the statutory declaration the applicant said that the accident happened because the driver tried to dodge a big truck which had overtaken him illegally. At the Tribunal hearing the applicant said that the other vehicle was a small car which had come towards the lorry from the opposite direction and had crossed the centre line. The course of questioning is found at [T8]:
Member: I’m just a little unclear about how the assistant driver was able to jump
off the truck.Applicant: Another car with vehicle came from opposite side of the road and so
that she could see that the other vehicle was crossing the line. He felt
that if it didn’t look good. He jumped but Li Cheng Shan with the
truck fell.Member: So are you saying this truck was actually coming from the opposite
direction, to the other truck that is?Applicant: From opposite direction yes but not truck – the other one was a car.
Member: In your statement you say that Mr Li Cheng Shan tried to dodge a big
truck which had overtaken him illegally?Applicant: Yes he tried to dodge the illegally overtaking car.
Member: Was it a car or a big truck?
Applicant: Car, smaller car.
Member: And was it overtaking him or was it coming from the opposite
direction?Applicant: From opposite direction; but went over the line – the middle line.
Member: You said that the driver of the other truck was a Mr Jin Long?
Applicant: Yes.
Member: So how do you know that?
Applicant: Because the police came later and there was an investigation of the
police. He was known to the assistant driver that the other driver was
Jin Long.Member: So the police investigated the accident?
Applicant: Yes.
Member: Why were you not satisfied with the outcome of the police
investigation?Applicant: Jin Long’s father was a senior official of Shan Ming District
Government and they tried to cover up that incident.Member: It doesn’t sound like that they basically tried to cover it up from what
you said. You’ve said that they told the assistant driver that Jin Long
was responsible?In the Tribunal’s discussion of the matter it says at [CB216]:
“I referred to the applicant’s evidence that the driver of the other vehicle had been Mr Jin Long. I asked him how he had known this. The applicant said that the police had come later and that as a result of their investigation the assistant driver had come to know that the other driver was Jin Long.”
At [CB216] the Tribunal turns to its report of its questioning of the applicant in relation to the demonstration on 10 October 2003:
“I referred to the applicant’s evidence that on 10 October 2003 he had organised a big protest at an intersection of the highway from Xiamen City to Fuzhou City. The applicant said that the demonstration had been in the city of Putian, at an entrance ramp where vehicles from Putian joined the highway. He said that he and the other people involved in the demonstration had stood by the side of the road. I put to him that this suggested that the only people who could have seen the protest would have been people from Putian entering the highway. The applicant said that all the drivers on the highway had been able to see the demonstration as well but he confirmed that the demonstration had been by the side of the entrance ramp. He said that they had had flags and banners and they had been where people on the highway could see them. I referred to his evidence that he had distributed ‘propaganda materials’ to the drivers. The applicant said that this had not been to the drivers on the highway but to those drivers who had wanted to get off the highway. He said, however, that the ramp where they had been standing had been an entrance ramp, not an exit ramp.”
In the following paragraphs at [CB217], the Tribunal reports of its scepticism about the effect of this demonstration and therefore why the government should have any interest in him. The Tribunal did not take up this matter in the context of the applicant’s claims that he had been previously organising protests. The Tribunal was also concerned as to why the applicant had not been charged with any offence if he was considered to be a key organiser of anti-government activity:
“He said that the demonstration had been peaceful and had not disturbed anything. I noted that this was precisely my point: I could not understand why the Government would have been concerned at all.”
At [CB218] the Tribunal reports on questions that it asked the applicant concerning his passport:
“I put to the applicant that the passport which he claimed he had used to enter Australia had been used by someone to enter Australia on 4 June 2004 and then to travel to Fiji on 6 June 2004. I noted that the ticket and boarding pass which the applicant had produced in the same name as the passport only related to the trip from Fiji to Australia on 19 June 2004. I put to him that this suggested that he had travelled to Fiji on some other travel document and had only obtained the Taiwanese passport in Fiji. I put to him that if he had obtained the Taiwanese passport, with an Australia visa, in the People’s Republic of China, there would have been no reason for him to travel to Fiji at all. The applicant said that the arrangements had been made by ‘them’ and he had no idea about the arrangements.
I noted that after the applicant had been detailed in 2006 he had produced to the Department a People’s Republic of China passport in what he claimed was his true identity, issued on 7 August 2002. I noted that in his original application for a protection visa he had denied that he had ever had any travel document other than the Taiwanese passport. I asked him why he had not told the truth about having obtained a passport in 2002. The applicant said that his People’s Republic of China passport had been in China at the time. I noted that the question on the form asked if he had ever had any other travel document. The applicant said that he had obtained this passport a long time ago, before the accident. I noted that the question remained why he had not told the truth about the passport. The applicant said that he had not been asked. I put to him that the question was in the application form. The applicant repeated that he had obtained this passport a long time ago and he said that it had been taken by the police.”
At the end of the hearing the applicant produced a copy of some documents in Chinese, one of which he said was a summons and the other was two press reports. He said that the summons had been delivered to his home in China at the beginning of 2007. The Tribunal could not read the document as it was in Mandarin, but put to the applicant that there was independent country information to the effect that official documents could be bought or forged in China and that the irregular or improper issue of documentation was widespread, and that therefore little evidentiary weight could be placed on official Chinese documents including summonses.
On 12 October 2007 the Tribunal sent a lengthy letter under s.424A of the Migration Act 1958 (Cth) (“the Act”) to the applicant. The first point made in the letter was the discrepancy in the evidence concerning the accidents between the original statutory declaration and what the applicant had told the Tribunal at the hearing. The second matter related to the 10 October 2003 protest, comparing the applicant’s testimony before the second Tribunal when he said that the demonstration had been at the mid-point on the highway between Xiamen and Fuzhou, and that there had been crossroads there, and he had been at the centre of it but not obstructing traffic, and what he had said at the hearing on 12 October 2007 when he had said that the demonstration had been at an entrance ramp where vehicles from Putian joined the highway, and that the people involved in the demonstration had stood by the side of the road. A third matter raised by the Tribunal referred to the applicant’s statement before the second Tribunal that he was not obstructing traffic and suggested that it was difficult to accept that he would have been arrested as a result of the demonstration:
“Conversely, if you had been regarded as a key organiser of anti-government activity as you likewise said at the hearing before the Tribunal … on 20 November 2006, it is difficult to accept that you would not have been charged with some offence and imprisoned for longer than the period of two and a half months for which you claim to have been detained.” [CB189]
The fourth matter raised by the Tribunal in the letter was that the passport which had been used by the applicant had been used by another person to enter Australia via Fiji on 4 June 2004 and to leave Australia via Fiji on 6 June 2006:
“As the Tribunal noted, this and the fact that the copies of a ticket and boarding pass which you produced only relate to the trip from Fiji to Australia on 19 June 2004 suggest that you travelled to Fiji on some other travel document and only obtained the Taiwanese passport in Fiji … if you had obtained the Taiwanese passport, with an Australian visa, in the People’s Republic of China, as you claim, there would have been no reason for you to travel to Fiji at all.” [CB190]
The Tribunal suggested that if the applicant had not been telling the truth about his travel arrangements then the Tribunal could conclude that he left the country legally using a travel document in his own name and was therefore not a person of interest to the authorities at the time.
The fifth matter raised by the Tribunal was the existence of the applicant’s brother and his failure to refer to him in his application for a protection visa lodged on 3 August 2004 as a close relative who was in Australia. Finally, the Tribunal asked the applicant to comment on the fact that he had not admitted to having a PRC passport in his application form when he was later able to produce one dated 2002.
The findings and reasons of the Tribunal traverse the matters which have been discussed. The Tribunal concluded that the discrepancy in regard to the description of the accident between the statutory declaration and the hearing date:
“… leads me to conclude that the applicant’s claim regarding the accident in which his friend Mr Li was involved (and therefore his claims regarding his involvement in protests following that accident) are not true … I consider that the inconsistency in the applicant’s evidence is also relevant to the review because it casts doubt upon the applicant’s credibility.” [CB222]
The Tribunal then dealt with the inconsistencies concerning the position of the demonstration on 10 October 2003:
“As the Tribunal stated in its s.424A letter, I consider that this inconsistency in the applicant’s evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether he and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road is relevant to the review because it casts doubt on whether he is telling the truth about the demonstration.” [CB222]
In regard to that incident the Tribunal went on to say at [CB223]:
“Thirdly, as discussed at the hearing on 12 October 2007 and as referred to in the Tribunal’s section 424A letter, if, as the applicant said at the hearing before the second Tribunal on 20 November 2006, he and the other people involved in the demonstration had not been obstructing traffic, it is difficult to accept that he would have been arrested as a result of the demonstration as he claims. Conversely, if he had been regarded as a key organiser of anti-government activity, as he likewise said at the hearing before the Tribunal … on 20 November 2006, it is difficult to accept that he would not have been charged with some offence and imprisoned for longer than the period of two and a half months for which he claims to have been detained.”
The Tribunal concluded that the applicant’s claims about the manner in which he travelled to Australia were not true because if he had been given the passport in the PRC with an Australian visa in it, there was no reason for him to have to travel to Fiji. The fact that he did travel to Fiji indicated that he must have left the PRC on his own passport legally. The Tribunal then turned to the question of the applicant’s brother, stating at [CB227]:
“I remain of the view that the applicant did not tell the truth about the fact that he had a brother already in Australia and the fact that he had a People’s Republic of China passport issued in August 2002 because he wished to conceal the fact that he had been planning to join his brother in Australia since at least 2002. I conclude from the fact that the applicant did not tell the truth about these matters that there is no truth in the claims made in his application for a protection visa regarding the problems he claims to have had with the authorities in China after his friend’s accident in 2003. I consider that the fact that the applicant did not tell the truth about these matters in his original application is once again also relevant to his overall credibility.”
The Tribunal concluded that it did not believe any part of the applicant’s story and therefore he is not a person to whom Australia owed protection obligations.
At the hearing before me the applicant relied on an amended application which contained only one ground:
“1. Denial of procedural fairness on the basis of the Tribunal’s apprehended bias … ”
The applicant tendered (Exhibit 1) a transcript of the hearing before the Tribunal and (Exhibit 2) a short extract of the transcript of the hearing before the second Tribunal:
“Member: So, what happened on the 10th of October which led to your arrest,
then?Applicant: On the 10th of October 2003 I organized over 100 people and also Mr
Li’s relatives to have a big demonstration in order to have bigger
influence on society. I picked highway in the middle of the highway
from Xiamen City to Fuzhou.Member: So, were you obstructing traffic?
Applicant: There was a cross road there. We were in the centre of it. It was not
obstructing traffic.Member: So the traffic was still able to come and go?
Applicant: That’s right.
Member: So, when you were arrested, was anyone else arrested?
Applicant: Only me.
Member: How did they know that you were the leader?
Applicant: Because before that day they send plain clothed policeman to follow
us.”Page 12 of the applicant’s written submissions sets out the basis upon which he proposes to argue that a fair-minded lay person properly informed as to the nature of the proceedings and other relevant matters might reasonably apprehend that the third Tribunal might not have brought an impartial mind to the applicant’s review. These are:
“(a) various adverse statements made by the third Tribunal Member at the hearing
on 12 October 2007 which related to central elements of the Applicant’s case
where such statements were:(i) illogical;
(ii) inconsistent with probative material which was before the Tribunal; or
(iii) involved a selective use of information which was before the second
Tribunal proceeding while ignoring other significant relevant aspects of
those earlier proceedings before the second Tribunal, including the fact
of that Tribunal’s acceptance of key aspects of the Applicant’s claims
regarding his political activities and persecution in China.(b) making various gratuitous observations about aspects of the Applicant’s case
during the hearing on 12 October 2007; and(c) attaching excessive weight to so-called inconsistencies in the Applicant’s
claims and evidence and failing objectively and impartially to assess the
Applicant’s entirely plausible explanations in relation to such matters.”The applicant asks that all these matters are looked at both individually and in combination because it is appropriate to have regard to the cumulative effect of them as they bear upon a claim of apprehended bias.
The applicant dealt first with the illogical statements, arguing that repeated statements made by the member to the effect that the demonstration organised by the applicant on 10 October 2003 was ineffectual because of its physical location, absence of any obstruction to traffic, and the fact that drivers on the highway would not have been able to see it, leading to a conclusion that the public authorities would not have been concerned about the applicant’s involvement in organising such an ineffectual demonstration was illogical. The applicant argues this on the basis of the explanations which he gave about the positioning of the demonstration and the flags and banners carried by the demonstrators. The applicant pointed out that he had provided the Tribunal with a plan showing where the demonstration took place. This is found at [CB200]-[201]. It shows the demonstrators on two sides of an approach road just off a toll station, which approach road leads into the main highway. The Tribunal does not ignore the map, but says [CB223]:
“The applicant’s representative submitted a map showing the claimed location of the protest ad also a hand-drawn diagram showing where the applicant claimed the protesters were standing, along both sides of an entrance ramp where vehicles from Putian joined the highway. The applicant’s representative submitted that the diagram showed that the applicant had not been inconsistent in his evidence or (apparently in the alternative) that the inconsistency in the applicant’s evidence was ‘more related to the general difficulty that may arise in the communication of information between people, in this case the Tribunal and an Applicant via an interpreter, particularly when the communication relates to spatial concepts rather than views or ideas’.
Contrary to the applicant’s claim in his letter dated 18 October 2007 he did say at the hearing before the second Tribunal on 20 November 2006, as referred to in the Tribunal’s section 424A letter, that the demonstration had been at the midpoint on the highway between Xiamen and Fuzhou, that there had been a crossroads there and that he and the other people involved in the demonstration had been at the centre of the crossroads but that they had not been obstructing traffic. I consider that this is quite clearly inconsistent with what the applicant said at the hearing before me, which is also reflected in the map and diagram submitted by his representative, namely that the demonstration was at an entrance ramp where vehicles from Putian joined the highway and that he and the other people involved in the demonstration had stood by the side of the road.
I do not accept that this inconsistency in the applicant’s evidence can be attributed to difficulties of communication, as submitted by the applicant’s representative. I consider that it arises from the applicant giving different accounts at the two hearings. Having regard to the inconsistency in the applicant’s evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether he and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road, I do not accept that he is telling the truth about the demonstration. As the Tribunal stated in its section 424A letter, I consider that this inconsistency in the applicant’s evidence once again also casts doubt on his overall credibility.”
Whilst it is essential to remember that the applicant claims that this is only one of the instances which he cites for the purposes of drawing a general conclusion as to the attitude of the Tribunal, the Tribunal’s reasoning still has to be looked at with care. What it seems to have done is to take into account all the evidence given, including the exculpatory evidence of the applicant, and come to a conclusion. It may well be that the conclusion reached by the Tribunal in this instance was wrong. But was it wrong in the sense considered by Gummow J in Minister for Immigration v Eshetu [1999] HCA 21 at [145], where after referring to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119, said that the power of review would be enlivened:-
“where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”?
I am of the view that whilst an analysis of the applicant’s explanations may have led another decision-maker to a different view, perhaps one more sympathetic to the difficulties of communication:
“To describe it as illogical would be merely to express emphatic disagreement with the reasoning. That of course is not a ground for review.”
Applicant S276/2002 v Minister for Immigration [2004] FCA 330 per Jacobson J at [43].
The applicant then attacks the Tribunal’s finding that the officials would not be concerned about such an ineffectual demonstration and points out that the Tribunal did not seem to have taken into account the claimed history of the applicant’s previous demonstrations. The applicant claims that the failure by the Tribunal to take this into account was perverse. The respondent argues that the earlier protests were smaller in scale than that conducted on 10 October 2003 and it is to be remembered that the Tribunal came to the view (rightly or wrongly) that the protest on 10 October 2003 was not itself sufficiently effective to attract the attention of the police. There is no want of logic in following that finding with a finding that it is unlikely that the police then arrested the applicant.
The applicant also complains that the Tribunal made frequent references to the fact that it had difficulty believing the applicant in his story that he was released without charge in relation to any offence arising out of the demonstration on 10 October 2003. The applicant argues that there is independent country information to the effect that people are frequently detained in China without charge for some considerable time, and reminded the court that the applicant claimed that he was made to sign a confession, had been tortured and was subject to harassment from officials for a further six months before he escaped. Once again, this subject was taken up in some detail with the applicant and with the applicant’s adviser. The applicant was given opportunities to put his points to the Tribunal. He did so. On his behalf, his agent countered the Tribunal’s incredulity with the statement that “this is China”. Another Tribunal may have been accepting of this statement; indeed the second Tribunal was prepared to accept the general tenor of all of the applicant’s evidence. But, it is not to be forgotten that the Tribunal has vast experience in these matters. It is entitled to draw upon that experience when formulating its views on claims made (see NAAX & Anor v Minister for Immigration [2002] FCA 263 per Gyles J at [52]). If the Tribunal had come to the view, from that experience, that it was unlikely that a person in the position of the applicant would not be charged with what the applicant wished to persuade the Tribunal was a serious offence, then provided it gives the applicant an opportunity to refute that suggestion, it is not acting illogically by holding onto it in the face of the refutation. Again, in relation to the applicant’s complaint about the Tribunal’s finding that if the PSB had been under the impression that he was trying to form a union he would have been charged and imprisoned, it seems clear that country information would support such a view even though other information indicated that it may not happen all the time. The Tribunal is entitled to prefer one view over another.
The applicant says that the Tribunal twisted his evidence in a manner that suited it and its evident intention from the outset was to make credibility findings against him. In the written submissions at [44] there is reference to questions to the applicant about whether or not what was written in his original statutory declarations had been read back to him. The applicant said that it had not been. The applicant argues that the Tribunal then went on to suggest that by this statement the applicant was asserting that he had no knowledge of what was written in the statutory declaration and then found that he did have such knowledge and “the applicant has only sought to disavow what was written in the statutory declaration accompanying his original application because he has contradicted what he said in that statutory declaration and he seeks to avoid the consequences of that contradiction.” The respondent argues that the applicant’s criticism of the Tribunal in this regard is unreasonable because the material point was not that the applicant had no knowledge of the contents of the statutory declaration in its entirety, it was only that it did not accept the story about the way in which the accident happened as set out in that declaration. What has really happened here is that the Tribunal has found quite a significant inconsistency between the statement originally made and what was told to it at the hearing. The Tribunal has taken this matter up with the applicant in a s.424A letter, has considered the applicant’s response, and showed its reasoning for maintaining its concern about the inconsistency at some length at [CB221]. The question originally asked of the applicant was a standard form of question. The applicant seeks to argue that it was asked deliberately for the purposes of trapping him. But I cannot see how this can be the case when, at the time it was asked, the Tribunal had no idea what the applicant would say in regard to the way in which the accident occurred. It could be said that the applicant’s submission is no more than a complaint that the Tribunal did not accept his explanation.
The next submission of the applicant deals with the alleged inconsistencies concerning the place where the demonstration took place on 10 October 2003. Here the applicant complains that the found inconsistencies are not on their face apparent and are irreconcilable. I have already indicated that another Tribunal may well have taken a different view of this evidence than this particular Tribunal did. But I am not persuaded that the manner in which the Tribunal reached its decision on these matters constituted illogicality.
The applicant then proceeds to deal with statements inconsistent with probative material. The first statement is found at [T9.4] where there is a discussion about whether or not the police covered up the responsibility of Mr Jin Long. The evidence given by the applicant is not completely clear. To my mind it indicates that all the information obtained by the applicant was obtained from the assistant driver, and that the assistant driver was the person who told the applicant that Mr Long was responsible, and not the police. The Tribunal may not have understood it quite this way, or it may not have meant by its questioning that it thought the police had told the assistant driver that it was Mr Jin Long. If a mistake has occurred in the Tribunal’s understanding, one would be hard put to say that it indicated a closed mind on the part of the Tribunal and, in any event, it was not a matter that was further referred to in the reasons. Another example of allegedly perverse reasoning by the Tribunal was its statement that [T16.2]:
“You were released without being charged without any offence. The government wasn’t concerned with your further activities.”
It is correct that the applicant did not say this at all. He said that he was monitored by the police for a further six months and then escaped. It is also true that the Tribunal makes much of this in its reasoning to indicate the incredulity it felt about the story given to it by the applicant. But is this any more than the Tribunal holding a very firm view about the way in which the person who acted as the applicant claims he had done would have been treated in China? It cannot be said that the applicant was not given an opportunity to deal with the concerns and he did so both at the hearing and through his response to the s.424A letter, but the Tribunal did not accept them. There is always a difficulty when the Tribunal deals with matters of credibility and a concern is to how far a Tribunal should go. Theoretically, the Tribunal could have found in this case that the applicant lied about his brother and that this put the whole of his story in jeopardy. It did in fact make that finding, and whilst the applicant gives an explanation, it is not denied that he did not complete the form correctly. But the Tribunal felt it was necessary to go further, to give more detailed explanations in relation to a number of other areas upon which it had concerns. In doing this, it is of course influenced by its initial feeling that the applicant is not telling it the truth. So, as here, it may appear to make a finding without a substantive base. But that is only an appearance. There is a substantive base, and that is the Tribunal’s original disbelief founded on some entirely independent matter.
The applicant complains that the Tribunal made a perverse finding in relation to the travel arrangements of the applicant. The applicant told the Tribunal that he had travelled on a false Taiwanese passport from Shenzen to Fiji and from Fiji to Australia. The Tribunal knew that the passport had been used to travel from Fiji to Australia previously, and suggested to the applicant that it did not think it likely that he had travelled in that way on a false passport given to him in Shenzen. It was the Tribunal’s view that he had travelled out of PRC legally, and only picked up the passport in Fiji. The applicant denied this, saying that he did not understand what the travel arrangements were because they were all made for him by the people smuggler. Whilst there is nothing implausible in that, and there is nothing implausible in the suggestion made by the applicant’s counsel that the passport could have travelled from Fiji to Shenzen before the applicant left, it is equally possible that he did travel in the way suggested by the Tribunal. Once again, the applicant’s complaint seems to be that the Tribunal did not accept his version of events.
The applicant cites the Tribunal’s dealing with the summons that was produced at the end of the hearing as another example of evidence of the Tribunal’s apprehended bias. It is to be recalled that the summons was produced, but was in the Mandarin language. The Tribunal informed the applicant that it could not read Mandarin. The practice of the Refugee Review Tribunal is to require all documents produced to it to be translated into English (see Principal Member Direction 3/2005 at [40], issued by the Refugee Review Tribunal pursuant to s.420A of the Act). The Tribunal questioned the applicant as to why the PSB would come to see him in 2007 and leave a summons for him. The applicant told the Tribunal that he did not know. The Tribunal then advised the applicant of the independent country information concerning document forgery and fraud in China. At [CB228] the Tribunal concludes in relation to the document that:
“Since for reasons given above I do not accept that the applicant was of any interest to the authorities before he left China I do not accept that the summons he produced is genuine.”
Whilst the finding made by the Tribunal was not strictly necessary because there was no evidence about what the document was a summons for (it may have been a summons for an unpaid parking fine for all the Tribunal knew), it could not be said that the conclusion was not one that was capable of being reached on the basis of available evidence. The applicant argues that instead of assessing the significance of the summons on its merits the Tribunal member simply discounted it entirely by reference to the DFAT advice. He claimed that in effect that approach meant that no probative weight could or should ever attach to any official Chinese document because of the widespread problems of forgery and corruption in China. I do not think this is what the Tribunal actually did. It noted the forgery, and said that as a result he could not give much weight to the document, but it dismissed the document for other reasons, namely the general lack of credibility of the applicant’s evidence. One wonders how the Tribunal could have been expected to assess the significance of the document on its merits when it had no idea what it said, and the applicant did not say that it related to any of the matters that were being considered by the Tribunal.
The applicant proceeded to argue that the applicant’s complaint of apprehended bias was further supported by gratuitous and facetious remarks made by the member during the course of the hearing, which signalled a lack of objectivity on the part of the member, and a strong predisposition to disbelieve the applicant. There were two such remarks. The first was found at [T22.2] where there was a discussion about the applicant’s brother and about a person who was a friend of the applicant’s brother who had provided a bond of $25,000.00 for the applicant. The allegedly gratuitous and facetious remark was [T22.5]:
“If his brother really has a friend who is prepared to post $25,000.00 bond for him who’s not a relative then Mr [Applicant] is a very lucky man.”
If all the transcripts of remarks made by Tribunal and judicial officers in the course of a hearing were examined with an eye minutely attuned to the discovery of error, one such as this would fall far down a list, which might commence with ‘insulting’, and pass through ‘sarcastic’ to end with ‘jocular’.
Another allegedly gratuitous remark made by the Tribunal is found at [T13]-[14], where there was a discussion about the protest at the crossroads. The extract complained of is:
“It seems to me a very odd protest. From the description you have given, you were standing by a road which would have only been used by people from Putian who were joining the highway. If you wanted to attract the attention of the drivers who were using the highway you would have had to be somewhere else entirely.”
…
But the way you went about it seems to have been remarkably ineffectual.”
I am afraid that I am unable to see the offence in this statement. It appears to me to be no more than a comment.
Finally, the applicant deals with what he describes as “attaching excessive weight to trivial matters”. Of course, the definition of “trivial” is in the mind of the definer. Just because the applicant considers a matter trivial does not mean that the Tribunal did. The Tribunal is the trier of fact. It is very difficult for this court to interfere with conclusions drawn by the Tribunal on the basis of facts that it has found just because they might appear to the court to be trivial.
I have dealt above individually with the matters raised by the applicant as indicating that the Tribunal might be considered by the hypothetical lay person to have approached this matter with a fixed mind intent upon finding against the applicant, whatever he might have said. The applicant, rightly in my view, relies on the cumulative effect of all these matters and argues that even if there is an explanation for each of them individually, then cumulatively they would have the necessary effect upon the lay observer’s mind. At [32]-[34] of the submissions, the applicant sets out his interpretation of the general test for apprehended bias in the context of administrative proceedings at and [12] of the respondent’s submissions those general statements of principle are accepted as correct. The principles are stated as follows:
“The general test for apprehended bias in the context of administrative proceedings such as those conducted by the Refugee Review Tribunal is succinctly reflected in the following passage from Justice Allsop’s decision in the Full Court of the Federal Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14]:
“The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision” (emphasis added).
It is important to appreciate that the relevant test is an objective test of possibility, not probability, as to what will be done or what might have been done. That was emphasised by the High Court in Re RRT; Ex parte H (2001) 179 ALR 425, where Gleeson CJ, Gaudron and Gummow JJ said at 434-435:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be an appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
The applicant goes on to quote from the decision of Allsop J as part of the Full Court in NADH v Minister for Immigration (2005) 214 ALR 264 at [115]:
“By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error … Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reason foundation, at times as plainly ex facie wrong and as selective of material going one way, these considerations may found a conclusion that posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly …”
The applicant seeks to bring the cumulative effect of his complaints about the Tribunal in this case within his Honour’s examples. But the views extracted from the judgment of Allsop J should be tempered by what his Honour said at [19]-[20], where he discussed the position of a Tribunal member as compared with that of a judge in open court:
“The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal it its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition … Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness.”
NADH was a case in which some strong documentary evidence in support of the applicant’s claims was dismissed by the Tribunal in a cursory manner on the basis of ‘vagueness’, which was found by the Full Bench not to have been borne out either by the contents of the evidence or of the Tribunal’s description of those contents at [35]:
“It amounts to an unreasoned conclusion bereft of express supporting thought process and of any rational foundation.”
There were ten such documents which the primary judge considered that the Tribunal had acted perversely in assessing. The applicant’s complaints in NADH do not end there. The transcript was examined carefully in the light of the Tribunal’s conclusion that the applicant had a poor knowledge of the Christian religion. That conclusion, Allsop J found:
“ … in the light of the terms of those questions, of all the questions and all the answers, is startling and difficult to accept as a rational or at least reasoned response to the totality of the questioning and of the material before the Tribunal.”
Other cases in which apprehended bias was found include Re RRT; Ex parte H [2001] HCA 28, where the prosecutors claimed that they feared persecution on the grounds of the female prosecutor’s ethnicity. The Tribunal made its decision on the basis of its assessment of the male prosecutor’s credibility (at [13]). The court outlined several instances in which the male prosecutor’s credibility was examined by the Tribunal. The Tribunal told the prosecutors on several occasions that it thought the prosecutors were not telling the truth, that it thought the story was a fabrication, that it thought the applicant’s evidence was ‘nonsense’. In making its finding of apprehended bias, the court said at [32]:
“In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa.”
Another case in which a finding of apprehended bias was made out was VFAB v Minister for Immigration [2003] FCA 872 (“VFAB”), where the Tribunal in its reasons did not accept the applicant’s claims that he had been involved in a campaign and was threatened and intimidated by a ‘mafia’ on the instructions of a feudal lord as credible (at [6]). An examination of the transcript by Kenny J indicated that the Tribunal embarked on an aggressive and belligerent style of questioning from the beginning of the hearing (at [45]), adopted a hostile attitude which either led the Tribunal to misquote the applicant’s evidence or prevented the Tribunal from accurately processing what it had heard (at [50]), talked over the applicant (at [51]), adopted an adverse commentary on the applicant’s evidence that conveyed that she was disposed to regarding him as untruthful (at [51]), argued with the applicant about his evidence as he gave it (at [58]) and was over-keen to detect inconsistencies in the applicant’s evidence (at [60]). In making the finding that the Tribunal’s reasoning was affected by apprehended bias, Kenny J said (at [82]):
“The vice was not that the Member had an adverse opinion about the applicant’s claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant’s claim when the hearing commences: see s425(1)-(2). The vice in this case was that, by the Member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by the tone of her voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member’s questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”
Similarly, in SZEOQ v Minister for Immigration [2006] FCA 117 (“SZEOQ”), the Tribunal member expressed “profound disbelief” in the appellant’s claims from the very beginning, by, for example, questioning the appellant aggressively about his appearance and how he did not appear to be of Roma ethnicity (see: SZEOQ at [25]-[26]). This continued throughout the hearing. In addition, the Tribunal commented that the appellant was a ‘typical example’ of a Lithuanian who had left Lithuania for work purposes (at [25]). Cowdroy J determined that such questioning went beyond a “vigorous exchange” (at [29]) and constituted apprehended bias.
These examples of cases where apprehended bias has been found against the Tribunal indicate that the test is a strict one. It most certainly does not involve the court putting itself in the place of the Tribunal, deciding on the facts that it would have come to a different conclusion than the Tribunal did and then finding that this is what the hypothetical lay observer would have done, and therefore he or she would have thought that the failure to do so would have indicated a propensity or possibility of a mind that was not impartial. As the respondent pointed out at [21] of his written submissions, by reference to the decision of Hayne J in Minister for Immigration v Jia (2001) 205 CLR 507 at [190]:
“Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.”
Although I am prepared to accept that another Tribunal may have taken an entirely different view about the seriousness of some of the alleged inconsistencies in the applicant’s evidence than this Tribunal did, I do not see in its findings a pattern which would suggest to the hypothetical lay observer a closed mind. A hypothetical lay observer may well agree with some of the conclusions reached by the Tribunal, for example, the concerns expressed about the ticket and the method of coming into Australia, or may not be convinced by the applicant’s explanation of why he did not reveal the existence of his brother living in Australia in the initial application. One hypothetical lay observer might agree with the Tribunal that the difference in the stories about the motor vehicle accident itself were serious inconsistencies which cast doubt upon the applicant’s claims, whereas another might say that the explanation given was plausible enough to negate such concerns. Once this situation occurs, where a court cannot be sure of the reaction of the hypothetical lay observer, it would not be safe to make a finding that the Tribunal hearing was infected by apprehended bias. In those circumstances I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 29 May 2008
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