SZIJU v Minister for Immigration
[2010] FMCA 235
•14 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 235 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – allegation of incompetent interpretation at the Tribunal hearing – not established – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIJU”. |
| Migration Act 1958 (Cth), ss.91X, 424, 424A, 425, 427 |
| Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Multicultural Affairs v Legeng Jia [2001] HCA 17 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 MZYCQ v Minister for Immigration and Citizenship [2009] FCA 1286 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs and Anor (2006) 231 ALR 592 SZIJU v Minister for Immigration & Anor [2008] FMCA 51 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZIJU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2014 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person with the assistance of a Fuqing interpreter. |
| Counsel for the Respondents: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox (Ms Weston) |
ORDERS
The application filed on 20 August 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2014 of 2009
| SZIJU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant was born in Haikou, Fuqing in the People’s Republic of China on 4 December 1979. He attended school in Haikou from 1987-1999 and lived there until January 2005. He was married on 7 December 2004 and his wife, son and daughter live in China. The Applicant was self-employed between July 1999 and January 2001, unemployed thereafter and subsequently left for Australia on 4 August 2005 on a PRC passport issued in Guangdong on 17 June 2002. The Applicant claims fear of persecution in the Peoples Republic of China for Convention related reasons of “political opinion”.
Attached to the Applicant’s application for a Protection (Class XA) visa is a statutory declaration where he claimed the following:
i)he worked with his father in Haikou’s seafood market from 1999, was married on 7 December 2007 and has two children (a daughter and a son);
ii)the Applicant was injured in an accident involving his seafood delivery car and a police vehicle driven by an off-duty PSB police officer;
iii)his leg was broken requiring a metal plate and pins to be inserted;
iv)his family paid medical bills, vehicle repairs, stock loss and compensation to the seafood restaurant;
v)the driver of the police vehicle was drunk but escaped punishment due to his position at the Haikou PSB;
vi)the Applicant’s father tried to take legal action in the local court against the driver but was unsuccessful;
vii)the Applicant’s health improved and he participated in a peaceful demonstration seeking the issue of compensation to be addressed but this was denounced as an anti-government protest;
viii)he was consequently taken away by PSB authorities and interrogated all night;
ix)the Applicant travelled to Beijing to be present during the National Peoples Congress so that he could lobby delegates;
x)he obtained temporary employment at the hotel (Yulong) where the delegates were staying and he placed copies of the petitions in tissue boxes in each of the rooms of the delegates and these were exposed when a tissue was removed;
xi)the PSB arrested his accomplice but the applicant had left the hotel; and
xii)the Applicant has been in hiding ever since and fled Beijing for Australia for fear of persecution.
The Applicant arrived in Australia from China on 5 August 2005 and applied for a Protection (Class XA) visa on 2 September 2005. The delegate of the Minister refused the application on 30 September and the Applicant applied to the Refugee Review Tribunal (“Tribunal”) on 3 November 2005. The Tribunal first made the decision affirming the decision on 28 December 2005. That decision was quashed when the Minister conceded a breach of s.424A of the Migration Act 1958 (Cth) (“the Act”) based upon the relevant authorities as they then were.
The second Tribunal made its decision on 7 June 2007. His Honour Federal Magistrate Smith quashed this decision on 30 January 2008 (SZIJU v Minister for Immigration & Anor [2008] FMCA 51) as the Tribunal had relied upon information supplied by an employee of the Yulong Hotel in Beijing without adequately disclosing the information to the Applicant. The third Tribunal made its decision on 2 May 2008. This decision was quashed by consent on 30 September 2008 as it was conceded that the enquiry made by the employee of the Yulong Hotel was not done in accordance with s.424 of the Act based on the relevant authorities as they then were.
The current Tribunal conducted its hearing on 19 November 2008 and 23 April 2009 and made its decision on 22 July 2009 and it was that decision RRT case number 0806466 by Tribunal member Mr Luke Hardy that is the subject of the current proceedings before this Court. On 20 August 2009, the Applicant filed proceedings seeking judicial review of the fourth Tribunal decision.
A Court Book (“CB”) was prepared by the first respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court. At the first court date directions hearing on 16 September 2009, the applicant was granted leave to file an amended application. The applicant did not comply with this order and therefore relies on his original application.
An original application which states
1. The Tribunal committed jurisdictional error of law by failing to comply with its obligations under section 425 of the Migration Act.
Particulars
The Tribunal failed to comply with its obligations under section 425 of the Migration act so as to give the applicant an opportunity to “give evidence and present arguments arising in relation to the decision under review”
2. The Tribunal’s decision has included a reasonable apprehension of bias
Particulars
The Tribunal’s decision was infected with jurisdictional error in that the reasoning process employed by the Tribunal in reaching its decision reveals irrationality, illogicality and/or unreasonableness.
3. The Tribunal failed to look at my claims fairly and properly.
Particulars
The Tribunal may not be bound by technicalities, legal forms or rules or evidence; but the Tribunal must act according to substantial justice and the merits the case while the Tribunal review a decision. However, in my case, the Tribunal failed to do so.
Tribunal decision
The Tribunal decision prepared by Mr L Hardy is of 58 pages and some [325] paragraphs. It contains a review of the Departmental file and three Tribunal files compiled by the three previously-constituted Tribunals. The Applicant appeared before the current Tribunal on 19 November 2008 and 23 April 2009. On both occasions he was accompanied by Mr Harry Huang of Priscilla International Co Pty Ltd, a registered migration agent as his advisor and at the first hearing a witness gave evidence. The Applicant, assisted by his agent, filed post hearing submissions in the form of another statutory declaration and press articles. The decision contains a detailed recording and analysis of all of this material.
In setting out the following background material, I have relied upon the written submissions of Mr D Godwin of counsel and I have either paraphrased or quoted directly from those submissions. I have not made further attributions as this would make the summary unwieldy. The information is provided to assist in the understanding of the nature of the application before the Court and not to establish any evidentiary point.
The Tribunal accepted that the Applicant had suffered quite serious injuries in early 2001, consistent with a kind of traffic accident he had described. The Tribunal accepted that these injuries included breaks and fractures in his leg and that the treatment for these included the use of pins which were subsequently extracted. The Tribunal accepted that the Applicant had no choice but to undergo a lengthy convalescence and he was effectively immobilised for over a year. With some hesitation, it also accepted that the accident was caused by the negligence of a policeman and that compensation claims were made. However, the Tribunal was unable to decide from the evidence whether the Applicant had received compensation.
The Tribunal considered there were significant inconsistencies and implausibilities in the Applicant’s evidence as follows (CB 392 – 394):
a)It found his claims had been ignored prior to his sit-in demonstration in 2003 to be inconsistent with the leaked Public Service Bureau (PSB) document which identified him as being a subversive since 2002. It also found that this was inconsistent with his claim that it was his father who had been lobbying the police and court staff in 2002, rather than the Applicant;
b)It found that the treatment he claimed to have received after the sit-in in 2003 (overnight detention and a fine) was inconsistent with his claim profile as a subversive;
c)It found that the Applicant’s claimed fear of being caught for distributing the petition in 2005 was inconsistent with his inclusion of his name and address on that document;
d)It found that the Applicant’s evidence was inconsistent as to whether he left petitions in all rooms or only those he knew to be of delegates;
e)It is incongruous that the Applicant had no escape plan from the hotel if detected placing the petitions in tissue boxes in the delegates’ rooms;
f)It was implausibily fortuitous that the Applicant’s friend would find him in a phone booth to warn him that he was being sought by the authorities;
g)The Tribunal found that the Applicant’s evidence about how he prepared and what he observed before commencing his pamphlet distribution to be inconsistent and implausible;
h)The Tribunal found that the claim that the delegates for the National Peoples Congress were staying at the hotel on 25 February 2005 to be inconsistent with the independent information to the effect that the security arrangements for the conference were not put in place until 1 March 2005;
i)The Tribunal found that the Applicant’s evidence as to his familiarity with the process of hiding documents in a tissue box to be inconsistent; and
j)The Tribunal found that the Applicant’s evidence as to the policeman’s attempts to stop his marriage to be unconvincing (CB 397) as he and his wife were too young to be married legally. The Applicant also changed his evidence as to the official nature of the marriage certificate and was unconvincing as to how the marriage could be concealed from the PBS.
The Applicant’s advisor identified some concerns about the translation in the various hearings before the Tribunal. The Tribunal disregarded the challenged evidence given to the second Tribunal (CB 389). In respect of the evidence of the present Tribunal, it was not satisfied that it had been misled by the interpreting, or that the Applicant had been disadvantaged by the quality of the interpretation in any significant way (CB 389). When assessing the Applicant’s credit, the Tribunal took into account the delays caused by the quashing and the remittal of earlier Tribunal decisions. It also took into account his claims of nervousness, claimed trauma and claimed lapse of memory (CB 391). However, it found the Applicant was an unreliable witness (CB 391).
The Tribunal found that the purported PSB “internal document” which identified the Applicant as subversive to be a forgery. It found that the claimed events of 25 February 2005 did not occur and the Applicant was not in Beijing at that time. It found that the purported summons to the Applicant’s father was not genuine. It did not accept that the Applicant’s father had been injured by the police as a result of the Applicant’s activities in February 2005 (CB 395-397).
The Tribunal did not accept that the Applicant was wanted or was of interest to the Chinese authorities in connection with the manner in which he pursued his compensation claim. It consequently did not accept that he and his family had been harassed, detained or summonsed over the years, or that his family had gone into hiding (CB 397 – 398).
The Tribunal considered whether the enquiry by the earlier Tribunal with the Yulong hotel in Beijing might have brought him to official attention. As the Tribunal found, the Applicant was not in Beijing and had not worked in the hotel in 2005. This meant that the enquiry made with the hotel would not be connected with the Applicant. The Tribunal found that it was not satisfied that the Chinese authorities would know that the Applicant had sought to extend his time in Australia or the reason he chose to do this (CB 398).
The Tribunal accepted that the Applicant had breached the family planning laws in China and noted that the Applicant had not claimed any subjective fear for this reason (CB 399).
Consideration
The Applicant, in accordance with the orders made at the directions hearing on 26 September 2009, filed written submissions prior to the hearing. The submissions do not refer specifically to the grounds for review pleaded but make general statements which broadly encompass all of the grounds. The submissions state
1. It is submitted that the Refugee Review Tribunal (“The Tribunal”) is prejudiced strongly against my orals evidence or my documentary evidence or my written claims in support of my application for a Protection Visa; and that the Tribunal was unable to make a fair decision on my review application with its apprehensive bias
* Particulars (not reproduced)
2. This is submitted that the Tribunal failed to create a genuine opportunity to give my oral evidence in support of my claims or to present my argument against the issues raised in relation to my review application.
* Particulars (not reproduced)
Both of these submissions are supported by particulars which generally address issues in the judgment with which the Applicant disagrees with the Tribunal’s decision. This is in effect a disagreement with the factual findings of the Tribunal.
In oral submissions, the Applicant referred to the standard of interpretation provided in respect of hearings. In the Tribunal decision under the heading “Post Hearing Submission” at paragraph [206] it states:
In his statutory declaration, the Applicant claimed that the work of the interpreter at the 23 April 2009 hearing was “improper and inaccurate”. He proceeded then to say that he understood the Tribunal to have remarked at the hearing that it must have been something of a coincidence that the 40 to 50 guests at the Yulong Hotel who were also delegates at the people’s conference just happened to be accommodated on the three floors usually assigned to him for cleaning. This in fact was what the Tribunal had put to him at the hearing and therefore it seems that he understood the Tribunal correctly through the interpreter….
Then at paragraph [217] of the Tribunal decision it states
In his fifth point, the Applicant again said the interpretation at the 23 April 2009 hearing was so poor that he could not understand the Tribunal’s concern about the internal PSB list at all. The Tribunal considered this claim but, on reviewing the recording of the hearing, the Tribunal noted that it raised its concerns a number of times in a number of different ways and, notably the Applicant gave explanations on the point in respect of these concerns. It did not disavow, in the statutory declaration, any of the responses that came through the interpreter. His response to the Tribunal’s concerns in the statutory declaration is quite similar to the response he gave at the hearing, adding rather than changing or correcting details.
In the “Findings and Reasons” at [269] to [270], the Tribunal refers to the submission made about the translation. The decision indicates that the argument about the interpreter was considered at [271] and found that:
…The Tribunal is not satisfied on the evidence before it that it has been misled by the interpreter or that the Applicant has been disadvantaged by the quality of the interpretation in any significant way. Where the Applicant has subsequently made claims completely unheard at the hearing, such as the one suggesting that he might have seen Congress delegates being transported in luxurious vehicles on 25 February 2009, the Tribunal is satisfied that he was given may comprehensible prompts, clearly comprehended by him at the time, to provide this explanation for his choice of actions on that day. The Tribunal is of the view, on the information before it, that it is open to assess this claim on its merits including the factor of consistency or inconsistency with evidence the Applicant gave at the 23 April 2009 hearing.
Then at [280] the Tribunal made the general finding about interpretation issues:
In dealing with these issues of reliability, the Tribunal took into account the Applicant’s claimed nervousness, claimed trauma and claimed lapses of memory, particularly about dates. The Tribunal also considered, and has appropriately responded to, the Applicant’s complaints about the interpretation of parts of his evidence, noting that in response to concerns raised at the hearing, the Tribunal disregarded the Applicant’s answers to a number of questions. In addition, the Tribunal has taken account of the delay brought about by multiple remittals resulting in repeated hearings, calling upon the Applicant to repeat his evidence and, in particular, evidence going to the question of consistency and reliability.
The Applicant identified four sorts of interpretation difficulties. The first issue of interpretation relates to the matter the Applicant raised in his oral submissions as to whether it is coincidental that so many of the delegates to the National Peoples Congress happened to be staying on the floors that he had been allocated as cleaner. The Tribunal deals with the issue in its decision at paragraph [123] – [137]. What is significant is that this issue complained of by the Applicant does not form part of the Tribunal’s summary of what happened at the hearing. This is the part of the evidence that the Tribunal has struck from its notes and has disregarded in its reasons. This is made clear at paragraphs [206] – [208]. So the first issue that the Applicant raises in his statutory declaration and the comments made by his advisor during the hearing about interpretation did not form part of the Tribunal’s findings.
This is not the case with the other three areas. The second area is the issue as to whether or not the Applicant took appropriate steps to ensure that no one came back to their hotel rooms while he was placing the petitions in the tissue boxes. This is dealt with in a number of places within the decision. The circumstances are summarised in paragraphs [123] – [136] (CB 368 – 370). The Tribunal addresses this issue in paragraph [210] – [211] and made the following observation
…The Tribunal reviewed the recording of the hearing and is greatly confident, indeed satisfied the applicant understood at the time what he was being asked about (a number of times) and his answers were on the point and relevant to the questions. The Tribunal does not accept on the information before it that the applicant failed to understand the correct meaning of the Tribunal’s questions, or the interpreter misinterpreted his responses (CB 378 – 379).
The Tribunal comments on this point again at paragraph [299] where it said
[299] … The Tribunal questions this further, and the applicant said he did not know the details. He later blamed the interpreter for making this whole part of the Tribunal’s enquiry incomprehensible to him, but, on the evidence before it, the Tribunal does not accept that explanation for the poor quality of the applicant’s evidence about how he prepared and what he observed before embarking on the pamphlet distribution (CB 394).
The third issue is whether or not the applicant understood the question asked by the Tribunal about when he first used the method of placing the petitions in tissue boxes and whether he had used similar methods to surprise his wife or his children. The Applicant alleges that his answer at the time, being “No”, was because he thought he was being asked about love letters, whereas in fact the answer should have been “Yes” because he had previously used this technique. The Tribunal addresses this issue in paragraph [140] where it says:
…The Tribunal asked him if he had ever used it before, inventing it as a method of distributing pamphlets in Beijing, say for the purposes of sending love letters or as a game with friends when he was younger (CB 370).
In reply, the Applicant said that he had sent love letters before but then said that he did not send them via tissue boxes. The Tribunal again addresses this issue in paragraph [212] – [214] and paragraph [270] and [271] and finally at paragraph [303] as the member stated
[303]… Later, in his last statutory declaration to the Tribunal, the applicant attributed to these assertions, all consistent with each other, to interpreter error, and claimed, in contrast to what he essentially said three times at the hearing, that he had practiced this method as a form of play with his girlfriend/wife in the past. The Tribunal does not accept that the interpreter erred or misled the applicant as to the question he was being asked to address. (CB 395)
The fourth issue deals with the supposed alert list upon which the Applicant was said to be a minor target and the Applicant said he was unable to generally understand the Tribunal’s concern about this claim. The Tribunal at paragraph [184] notes that this issue is dealt with in post-hearing submissions by the Applicant. At paragraph [190] the Tribunal comments that at the time that this was raised with the Applicant during the hearing, he appeared to understand the Tribunal’s concerns. The Tribunal considers this at paragraphs [217] – [220] and indicated that on reviewing the recording of the hearing that it had raised with the Applicant its concerns a number of times and in a number of different ways. Significantly, the Applicant gave explanations on this point in respect to those concerns. He did not disallow in his statutory declaration any of the responses that came through the interpreter. The responses to the Tribunal’s concerns and the statutory declarations are similar to the responses he gave at the hearing.
In the decision record, it is evident that there was a genuine attempt by the Tribunal to address the interpreting issues raised by the Applicant. It made factual findings about those claims, it has given reasons for those factual findings and the Applicant has not brought any evidence before the Court indicating how those factual findings erred.
It is noted that the Applicant’s migration agent Mr Harry Huang, who speaks fluent Mandarin, was present at both Tribunal hearings. There is no comment contained within the decision record indicating that the issue of translation was a problem at any stage during the hearing. The Applicant and Mr Huang were provided with a disk containing the recording of the Tribunal hearing however, no transcript with a supporting affidavit has been filed in these proceedings which would provide evidence in respect of the areas where the translation was defective. As Mr Harry Huang is an experienced migration agent that represents many Protection visa applicants in this Court, he would be intimately familiar with the practice of this Court in the presentation of this evidence.
Under s.427 of the Act, the Tribunal is required to provide an interpreter where the Applicant is able to give evidence without one: VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal has a statutory obligation under s.425 to ensure the invitation to a hearing is “real and meaningful”. This includes providing an interpreter of sufficient skills, such that the Applicant is not denied his or her right to a fair hearing: VWFY v Minister (supra) at [27] in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230. To establish and maintain a complaint in respect of interpretation, the Applicant must show one of the following:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17].
The Court should consider the manner of the Applicant’s responses, including “the responsiveness of interpreter answers to questions asked, the coherence of those answers, the consistency of one answer with another, and the rest of the case sought to be made and, more generally, the evident confusion in the exchanges with the Tribunal interpreter”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Per Heerey J at [41 which was subsequently applied in VWFY v Minister (supra) at [11] and P119/2002 v Minister (supra) at [20].
When the issue of interpretation was raised in the statutory declaration, the Tribunal member returned to the hearing recording and reviewed the contents in respect of this issue. I am satisfied that the Tribunal member has adopted the appropriate practice and procedure in establishing the standard of the interpretation and satisfied himself that the complaint be dismissed. In the circumstances, the complaint cannot be sustained and should be dismissed.
Ground 1
This ground alleges a failure to comply with s.425 of the Act but has not identified any issue upon which the Applicant was not provided with an opportunity to give evidence or present argument in respect of any particular aspect of these claims. The Applicant was invited and attended with his advisor two hearings of the Tribunal, which provided him with the opportunity to give evidence, present argument and the opportunity to address all of the Tribunal’s concerns which it had raised with him during the previous hearings. There is also an opportunity to submit post-hearing submissions on any issues that are still outstanding at the end of the second hearing.
It is acknowledged that SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs and Anor (2006) 231 ALR 592 was determined on a procedural fairness ground but the case is of direct relevance to the question of what is required of a Tribunal by s.425 of the Act. In that respect, as their Honours stated at [33] “the Migration Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal”. Their Honours stressed that the reference in s.425(1)(2) “the issues arising in relation to a decision under review was important”.
It is recognised that where there was a specific aspect of an Applicant’s account that the Tribunal considered may be “important” to the decision and open to doubt, the Tribunal must at least ask the Applicant to expand on those aspects of the account and ask the Applicant to explain why the account should be accepted. What was said by their Honours in SZBEL (supra) at [33] – [38] is clearly relevant to determining the approach to be taken in relation to s.425. In this matter, the Tribunal had two hearings and invited the Applicant to make post-hearing submissions, clearly giving the Applicant the opportunity to ventilate all of his arguments and evidence. The Tribunal decision shows that the Applicant was on notice of the inconsistencies and implausibilities that it thought existed and provided him with ample opportunity to address each of those issues. I am satisfied that this ground cannot be sustained and should be dismissed.
Ground 2
This ground alleges a reasonable apprehension of bias and claims irrationality, illogicality and unreasonableness in their decision making process. However, there is no particularisation of any part of the reasoning contained in the decision record which supports this claim. The Applicant has not filed evidence in support of this ground.
The Applicant again raised the issue of bias in his oral submissions before the Court. In effect, what the Applicant is submitting is that he disagrees with the factual conclusions reached by the Tribunal and it is this issue that he is pursuing. This is dealt with in the decision of MZYCQ v Minister for Immigration and Citizenship [2009] FCA 1286 per Sundberg J at [16] where His Honour states
The unparticularised bias claim was not put to the Magistrate. There is no substance in the complaint. There is nothing external to the Tribunal’s reasons bearing on the claim. There is nothing in the reasons suggestive of bias. The Tribunal accepted parts of the applicant’s claims, but rejected others, and gave its reasons for so doing. A bias case is not made out because parts of an applicant’s claims are not accepted or are disbelieved. That does not show prejudgment or a closed mind. See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] and Sun v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] – [48].
In paragraphs [282], [283], [285] and [286] various aspects of the Applicant’s claims and testimony is accepted by the Tribunal. Clearly, some parts of the Applicant’s story have been accepted by the Tribunal, but other parts are not accepted. This is not an indication of bias that the Tribunal has chosen to accept part of the Applicant’s, claims but not others.
Bias does not necessarily arise from illogical, irrational decision making or inferences: Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at [52], [75], [99] – [101]. Further, a manifestly defective or illogical approach to the consideration of evidence and even irrationality in the reasoning or conclusion, may create an impression of confusion, lack of care or incompetence but such an approach, without more does not necessarily demonstrate an apprehension of bias: Applicant S20/2002 (supra) at [101] and [136]. The party alleging bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration and Multicultural Affairs v Legeng Jia [2001] HCA 17 at [69].
The existence of bias may be inferred by facts and circumstances but caution should be exercised in the absence of evidence of partisanship or hostility, before inferring bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]. In the absence of any evidence and based on a fair reading of the Tribunal decision, this ground cannot be sustained and should be dismissed.
Ground 3
This ground alleges the Tribunal’s failure to consider the Applicant’s claims fairly and properly. The particularisation of this failure by the Tribunal is to act in accordance with the substantial justice and the merits of the case. In the written submissions provided by the Applicant, he claims that on a fair reading he found the Tribunal was prejudiced strongly against his oral evidence, documentary evidence and written claims. This is nothing more than an Applicant’s disagreement with the factual finding of the Tribunal.
These disagreements are identified:
a)The Applicant and his father’s failure to pursue compensation through the legal system;
b)The apparent immunity of the police officer who caused the accident;
c)The non-acceptance of the Applicant’s technique in placing the petitions in the tissue-boxes; and
d)The alleged internal document of the PSB listing him as a known subversive.
The Tribunal in its decision has addressed each of these issues and made a factual finding. It is not the role of this Court to pursue a merits review in respect of these items. The Tribunal has provided detailed reasons for its finding in each of these issues and it is open on the material before it to make these findings. This ground cannot be sustained and should be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 14 April 2010
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