SZIVC v Minister for Immigration
[2008] FMCA 854
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIVC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 854 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – 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 “SZIVC”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZLNW v Minister for Immigration & Citizenship [2008] FCA 910 |
| Applicant: | SZIVC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2835 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 13 September 2007 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 2835 of 2007
| SZIVC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a married man from Fuqing City, Fujian Province in the People’s Republic of China who was born in 1979. His wife and daughter remain in China. He claims that he has completed twelve years of education and states that he was a self-employed salesperson in China.
The applicant claims that he is a devout Taoist, also known as Yiguandao or Tien Dao, which is regarded as an illegal religious organisation by the Chinese government. He states that in early 2003, he met a Mr Zhang, a businessman from Hong Kong, who introduced him to Tien Dao. They became good friends soon the applicant became a devout Taoist. As his business activities involved travelling to many parts of China, he also recruited others to join Tien Dao.
In February 2004 the Public Security Bureau (PSB) arrested and detained the applicant for one month. He claims he was again arrested in November 2004 and again detained for one month and subjected to inhumane treatment. The applicant states that he was forced to write a confession and do punitive jobs at the detention centre. Prior to his release, he was fined 10,000 yuan. In January 2005 he was again arrested by the PSB together with ten other people while participating in a secret gathering at a friend’s house. They were interrogated many times and denounced as participating in illegal religious activities. After this incident, the applicant decided to leave China in September 2005.
The applicant arrived in Australia on 4 October 2005 and applied to the Department of Immigration for a Protection (Class XA) visa on 17 November 2005. A delegate of the Minister refused to grant the visa on 15 December 2005 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 29 March 2006, the Tribunal affirmed the delegate’s decision and the applicant applied to this Court for judicial review of the Tribunal’s decision. On 19 August 2006 the Court dismissed his application. The applicant appealed the decision to the Federal Court which, on 20 February 2007, set aside the decision by consent and the matter was remitted to the Tribunal for reconsideration. It is the decision of the second Tribunal dated 7 July 2007 (reference 071287489) that is the decision currently before this Court for judicial review.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates that he attended a conference and received advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon. The applicant took this opportunity and filed an amended application. He was also required to file written submissions in support of his application. However the applicant appears to not have understood the function of this document and has in fact pleaded two new grounds of review.
Tribunal’s findings and reasons
The Tribunal did not accept that the applicant was a witness of truth and was not satisfied that any of his material claims invoked Australia’s protection obligations. The Tribunal’s reasons state:
a)On the basis of country information, the Tribunal accepted that the treatment of some people involved in Tien Dao may involve serious harm and systematic and discriminatory conduct amounting to persecution.
b)The Tribunal also accepted that Tien Dao could be classified as either as a “religion” or a “particular social group”.
c)The applicant provided four statutory declarations from different people claiming to have known him at various times. Each declaration states in precisely the same words that the applicant has attended a temple and participated in activities. None of the declarations state any knowledge (personal or otherwise) of the applicant being initiated into Tien Dao. All the declarations appear to have been prepared by the same person in precisely the same terms and format.
d)The Tribunal accepted that the applicant may have participated in Taoist or Buddhist related activities in Australia. However the statutory declarations did not in themselves establish that the applicant has a commitment to Tien Dao.
e)Country information indicates that Tien Dao was ruthlessly oppressed by the Chinese authorities in the 1950s and 1970s with arrests continuing into the 1980s. It is because of this oppression that there is little evidence of the sect having a presence in many parts of China, particularly Fujian and Guandong provinces, where the applicant claims to be a member.
f)At no stage did the applicant include any documentary evidence of his involvement in Tien Dao apart from the statutory declarations. Country information indicates that members of Tien Dao usually undertake an initiation ceremony and are then provided with a certificate. Notwithstanding the applicant’s claim that such practice does not happen in China, the Tribunal was not satisfied that the applicant had been initiated into Tien Dao.
g)The applicant also claims he distributed promotional material but again provided no details on what they contained or how, where and to whom they were distributed.
h)The applicant claims he was arrested and detained three times in February 2004, November 2004 and July 2005. The Tribunal found that the applicant’s evidence in relation to his arrest and detention was unconvincing, implausible and contradictory.
i)The applicant’s claim that his parents and wife were questioned by the PSB and most of his personal documents were confiscated cannot be supported by any information available from China. The Tribunal rejected the applicant’s evidence that the Chinese government would not admit to his arrests.
Consideration
Ground one
1. The Tribunal did not accord the applicant natural justice and procedural fairness pursuant to section 425 of the Migration Act. The Tribunal did not give the applicant a sufficient opportunity to give evidence or make submissions about determinative issues arising in relation to the decision under review.
Particulars
i) The applicant provided the Tribunal with four statutory declarations (CB 202). In its Findings and Reasons (CB 202) the Tribunal said:
None of the declarants provide any confirmation or details of the applicant’s activities in China. None of the declarants state that they have any knowledge, personal or otherwise, of whether the applicant has been invited into the sect or that he has demonstrated any knowledge of Tien Dao. All of these declarations appear to have been prepared by the same person in precisely the same terms, and the same format, only the period of time each claims to have known the applicant varies, as does of course, the name and signature of the declarant. As such, the Tribunal cannot be satisfied that the statements reflect the personal views or experience or knowledge of the declarant, but rather that they may reflect the views of the applicant or his advisers.
The Tribunal accepts that the applicant may have participated in some Taoist or Buddhist related activities whilst in Australia. The Tribunal also accepts that such participation may give the impression o the applicant’s friends and co-participants that he is a Tien Dao adherent. They may then in good faith be prepared to testify to the observation. However such statements do not, in themselves, establish that the applicant has a commitment to Tien Dao. The applicant’s commitment may well have been simply to give such an impression.
ii) The Tribunal did not tell the applicant that the issues raised above were issues arising in relation to the decision under review.
iii) The Tribunal stated (CB 204):
It is clear on the applicant’s own evidence that he did not take it (his Identity Card) with him, nor did he claim to have secreted it anywhere else. Secondly, it is unclear from the evidence why the applicant did not ask his wife to send him his identity card soon after his arrival in Australia, given its importance in supporting his claims, rather than wait nearly two years before asking her to send it to him.
The Tribunal “asked the applicant to make any ID documents available to the Tribunal as soon as they arrived” (CB 198). The Tribunal did not tell the applicant that why he did not take his identity card with him, or what happened with the identity card or why he did not ask his wife to send him his identity card soon after his arrival in Australia were issues arising in relation to the decision under review.
Although the applicant filed written submissions, they in effect contain a second and third ground of review, and do not add any substance to the first ground. The applicant declined to make oral submissions.
Particular one of ground one claims that the Tribunal’s failure to raise with the applicant its concerns about the four statutory declarations was a breach of s.425 of the Migration Act 1958 (Cth) (“the Act”). On 4 April 2007, the Tribunal forwarded an “Invitation to Comment on Information” letter to the applicant’s agent pursuant to s.424A of the Act. That letter contained the following request:
The Tribunal has information that would, subject to any comment you make, be the reason, or part of the reason, for deciding that you are not entitled to a Protection visa.
The information is as follows:
Please see the attached decision of the previous Tribunal. For similar reasons the present Tribunal may draw adverse conclusions in relation to you Protection visa application. Please comment.
Please also:
o Advise as to whether any of the claims and evidence set out herein is inaccurate (with details of any alleged inaccuracies);
o Whether the Tribunal has omitted any of your material claims (the details of any alleged omissions) including in particular your claim that Tian Dao and Yi Guan Dao are the same religion; and
o By virtue of s.424A, please provide any further evidence or submissions you wish in support of your case. (CB 113)
Attached to the letter was the earlier Tribunal decision (reference N06/53039) made on 29 March 2006. The “Findings and Reasons” of that decision note:
Although he appears to have had some involvement with Buddhists in Australia, and claims that this was part of an inclusive Tian Dao practice in Australia, the Applicant did not provide sufficient evidence of having been a Tian Dao practitioner in the PRC prior to coming to Australia, or of having been one since coming to Australia for that matter. Even if he has been affiliating with Tian Dao in Australia, none of the Applicant’s evidence suggests that he would continue to do so in the event of return to the PRC. (CB 97.6)
The applicant was at this stage assisted by Priscilla Yu of Priscilla International Co Pty Ltd and the inclusion of the statement of reasons from the first Tribunal would have clearly put the migration agent, and consequently the applicant, on notice of it. The “Invitation to Comment” letter of 4 April 2007 clearly indicated that the second Tribunal was concerned in respect to this issue (CB 113). It would appear that the migration agent prepared a standard statutory declaration which was then completed by four individuals who attended the Taoist temple in Sydney which is a branch of Tien Dao. The statutory declarations appear to have been completed by the deponent writing their name, address, telephone number and period of time that he/she has known the applicant. They have been signed and witnessed by a Justice of the Peace. Attached to each statutory declaration is a photocopy of the deponent’s driver’s licence.
By the time that the applicant attended the hearing before the second Tribunal on 6 June 2007, he would have been aware that the extent and nature of his practice of Tien Dao in both China and Australia was of major concern to the Tribunal.
The applicant had the opportunity to give evidence and address this issue at the hearing. Although he was not assisted by his migration agent at the hearing, an interpreter was present and the applicant indicated there were no interpreting problems. The obligation is on the applicant to make out his own case and the relevant facts pertaining to the application need to be supplied by him in as much detail as necessary to establish the facts: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596] per Kirby J. It must also be assumed that an experienced migration agent such as Priscilla Yu or her firm would have advised their client of this obligation prior to attending the hearing.
The role of the Tribunal is to simply assess an applicant’s evidence. It is not necessary for the Tribunal member to indicate what he/she thought about the nature and detail of the evidence supplied, see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated:
[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
There is no transcript or hearing tape in evidence so the Court only has the decision record to assess whether the Tribunal gave the applicant sufficient opportunity to give evidence or make submissions about determinative issues arising in relation to the decision. A substantial body of country information is contained in the “Findings and Reasons”. However, the decision record also contains a detailed description of issues raised with the applicant in respect to his involvement with Tien Dao in China. As the claims relate to persecution of the applicant in China it was appropriate that the Tribunal addressed that in detail with the applicant.
The second particular of ground one concerns the applicant’s identity card. The decision records what occurred in respect of the card at the hearing:
The applicant was asked to verify that the passport he provided to the Tribunal was a genuine document in his name and he claims that it was a genuine document but not in his name. He claims that his true name was [another name different from the visa application]. He told the Tribunal that he was unable to get a passport in his own name because of his teen day involvement and a friend working in the PSB was able to obtain a passport for him in someone else’s name. The Tribunal asked the applicant if he had any documents, such as a driver’s licence or household registration that was in his true name and he claimed that he did not have personal ID papers, however, they will still be on their way to him from China. He claims that his wife posted to him in a parcel but it has not arrived. The Tribunal asked the applicant to make any ID documents available to the Tribunal as soon as they arrived. (CB 198)
The Tribunal’s “Findings and Reasons” makes the following comment about the identification card:
The Tribunal has seen the applicant’s passport which he claims is not in his true name. The applicant also provided the Tribunal with what he claims to be a genuine identification card in the name of [another name different from the visa application]. Whilst the Tribunal cannot be satisfied that either name is the applicant’s true name the applicant did not claim to be a national of another country nor did he make any claim against another country. (CB 202.2)
The conclusion drawn by the Tribunal in respect of the applicant’s identity and his identity card was as follows:
The applicant claims that he could not obtain a passport in his name because of his Tien Dao activities and he had to use a friend in the PSB to obtain a passport in a different name. The applicant has provided the Tribunal with what he claims is his Chinese identity card in his true name and valid until 31 August 2005. There are several issues which are of concern here. Firstly, the applicant claims that most of his personal documents were confiscated by the PSB when they raided his home. Whilst he is not specific as to which documents were in fact confiscated, he did not go on to exclude his personal identification card nor is it clear why the PSB would not take such a valuable document. It is clear that the applicant’s only evidence that he did not take it with him, nor did he claim to have secreted it anywhere else. Secondly, it is unclear from the evidence why the applicant did not ask his wife to send him his identity card soon after his arrival in Australia, given its importance in supporting his claims, rather than wait nearly two years before asking her to send it to him. Finally, given his apparent ability to procure falsified documents, the Tribunal cannot be satisfied that either document is, uncontrovertibly, in the applicant’s true name, or if one is in his true name, which of the documents is the true name. It may be that the identity card is a falsified document that the applicant procured to support his claim that he had to get a passport in a different name because he was a person to the Chinese authorities. Be that as it may, for the reasons outlined here, the Tribunal is not satisfied that the applicant is a follower of Tien Dao, hence it follows that he would not have been forced to obtain a passport in another name for that reason that he claims. (CB 204.2)
I agree with the submission made by Mr Smith for the first respondent that while the Tribunal did express a number of concerns about the Chinese identity card produced by the applicant, it decided the application for review on a different basis. It based its decision on the non-satisfaction that the applicant was a follower of Tien Dao.
The procedural requirements of s.425 of the Act are examined in SZBEL at [33]-[40]. A review of the procedures adopted by the Tribunal considered in the light of SZBEL indicates that it complied with its statutory obligations. The “Invitation to Comment on Information” letter of 4 April 2007 drew the applicant’s attention to certain issues. The applicant’s agent responded on 18 April 2007 with a number of documents that addressed the issues. The applicant was then invited to a hearing to answer questions and provide any arguments in support of his application. The two issues identified in the particulars to ground one were brought to the applicant’s attention by this process. This was confirmed by the filing of the four statutory declarations to overcome a problem identified in the first Tribunal decision and confirmed by the second Tribunal’s “Invitation to Comment” letter. As discussed above, the Tribunal had no obligation to expose to the applicant its thought processes in its assessment of the evidence.
In the recent decision of SZLNW v Minister for Immigration & Citizenship [2008] FCA 910, Cowdroy J indicated that SZBEL makes it plain that if a Tribunal is to make a decision adverse to an applicant for a specific reason, it is obliged to put that to the applicant and invite a response. His Honour relied on SZBEL at [47]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.(emphasis added)
Consequently it was necessary for the Tribunal to put directly to the applicant its concern of why he would join a sect that had been ruthlessly oppressed by Chinese authorities. Unfortunately, there is no transcript of the Tribunal hearing and I must base my decision on the decision record which states:
The country information above indicates that Tien Dao was recently oppressed by the Chinese authorities in the 1950’s and 1970’s with several arrests continuing in the 1980’s. Such was the oppression that there is little evidence that the sect even has a presence in many parts of China, particularly Fujian and Guandong where the applicant claims to have been a member and proselytised. Proselytism of Yi Guan Dao has not always been such an open matter. Indeed, Yi Guan Dao teachings incorporate a tradition of secrecy. Even with the relative opening of religious freedom in China, Yigandao remains a universal villain in the Chinese press. The sect remains very illegal and, given the intensity of past government and propaganda against it, is not likely to be accepted by the PRC government anytime soon. Yet the applicant claims that he approached business acquaintances openly and persuaded them to join such a sect. His explanation as to what he said or how convinced them to join such a highly illegal sect was profoundly unconvincing. When the country information was put to the applicant he became evasive and unable to satisfy the Tribunal that he undertook the activities he claimed. The applicant claims that he joined the sect under the influence of a Hong Kong businessman in 2003 because they had a discussion about corrupt government officials and because Tien Dao claims to restore good character and eliminate evil. The Tribunal finds such a glib explanation inconsistent with a decision to join a religion which put his life at risk. Given the “very illegal” status of Tien Dao in China, the Tribunal would expect an applicant to have more fulsome and persuasive reasons for enjoining with such a sect that than this applicant has put forward. (CB 203.3)
On the material available to me, I am satisfied that the “issue to which those reasoning processes were directed” (SZBEL at [21]) were adequately drawn to the applicant’s attention during the Tribunal hearing. In the circumstances I am satisfied that the two particulars identified by the applicant refer to issues which were drawn to his attention prior to the hearing and that he and his agent prepared specific responses. Further, a core issue in the Tribunal’s decision was why the applicant would join a religious group which had been ruthlessly opposed by the authorities. The applicant and his agent made no reference to this. However, the decision indicates that this was discussed with the applicant in a manner which made it apparent that this was a key issue in the Tribunal’s evaluation. I am satisfied that the complaint that s.425 has been breached cannot be sustained and that ground one should be dismissed.
Ground two
This is submitted that the Refugee Review Tribunal (“the Tribunal”) failed to comply with its obligations under s.424A(1) of the Migration Act 1958 (“the Act”).
Particulars
In the Tribunal’s decision, the Tribunal has stated that: -
The Tribunal has four statutory declarations from various people claiming to have known the applicant for varying amounts of time. Each of the declarations states, in precisely the same words, that the applicant has attended the temple and participated in activities. Each claims that the applicant has attended the temple and participated in activities. Each claims that the applicant “must be subjected to persecution by the Chinese government on his return”. The declarations do not indicate that the applicant was known to declarants whilst he was in China or provided any confirmation or details of the applicant’s activities in China. None of the declarants state that they have any knowledge, personal or otherwise, of whether the applicant has been initiated into the sect or that he has demonstrated any knowledge of Tien Dao. All of these declarants appear to have been prepared by the same person in precisely the same time, and the same formats, only the period of time each claims to have known the applicant varies, as does, of course, the name and signature of the declarants.
The above extract from the Tribunal’s “Findings and Reasons” is under the sub-heading “Statutory Declarations” (CB 202.4):
The Tribunal also stated that: -
At no stage has the applicant provided any documentary evidence of his involvement in Tien Dao, apart from some statutory declarations.
The passage in ground two also copies from the “Findings and Reasons”:
So, the Tribunal has considered the information, which is in relation to the evidences given by four declarants and which is regarding documentary evidences of my involvement in Tien Dao, as reason or part of reason.
The Tribunal has further considered the information, which my evidence might be inconsistent with the information obtained from independent source and which is in relation to my Chinese ID card, as reason or part of reason.
However, the Tribunal failed to give me, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of the above-mentioned information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and the Tribunal failed to ensure, as far as is reasonably practicable, that I understand why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review and the Tribunal failed to invite me to comment on or respond to it. (CB 203.6)
The statutory declarations forwarded to the Tribunal by the applicant’s agent is excluded from the operation of s.424A(1) of the Act because it falls within the exception contained in s.424A(3)(b).
The applicant’s argument that the Tribunal should have provided him with particulars of his views concerning the statutory declarations is not information within the meaning of s.424A(1), that is part of the Tribunal member’s subjective appraisal, thought processes or determinations, see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ:
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"
does not encompass the tribunal's subjective appraisals, thought processes or determinations … 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.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Although the statutory declarations were referred to in the Tribunal’s reasons, the decision to reject the application was expressed in the following terms:
For the reasons set out above the Tribunal does not accept that the applicant was, or continues to be of that adverse interest to the police or the Chinese authorities. As the Tribunal has not accepted that the applicant suffered harm from the police or anyone else, or that he was ever of adverse interest to them, it follows that the Tribunal is not satisfied that the applicant’s wife and family have been, or will be harassed by Chinese police and authorities.
The Tribunal has formed the view that if the applicant engaged in activities in Australia it was only an order to strengthen his claim for refugee status. As the Tribunal is not satisfied that the applicant’s conduct was otherwise for the purposes of strengthening his claim to be a refugee under the Refugee Convention it must disregard his conduct in Australia as required by s.91R(3) of the Act.
The issues raised by the applicant in this ground are not the reason or part of the reason for affirming the decision under review and consequently do not enliven s.424A(1) of the Act. In the circumstances this ground of review cannot be sustained and should be dismissed.
Ground three
The Tribunal’s decision has included apprehended bias.
Particulars
In the Tribunal’s decision, the Tribunal state that: -
The Tribunal accepts that the applicant may have participated in some Taoist or Buddhist related activities whilst in Australia. The Tribunal also understands that such participation may give the impression to the applicant’s friends and co-participants that he is a Tien Dao adherent. They may then, in good faith, be prepared to testify to that observation. However, such statements do not, in themselves, establish that the applicant has a commitment to Tien Dao…
Without obtaining any evidences from four declarants, how could the Tribunal make the finding that…such participation may give the impression to the applicant’s friends and co-participants that he is a Tien Dao adherent. They may then, in good faith, be prepared to testify to that observation…?
As a matter of fact, the evidences from four declarants are very much important. Unfortunately, with its apprehended bias, the Tribunal failed to consider such important evidences, fairly and properly.
Mr Smith submits that this assertion of an apprehension of bias pays insufficient attention to two critical matters:
a)When the applicant was invited to a hearing by the second Tribunal he was asked whether he wanted to take evidence from other persons (CB 157-160). In his response to the hearing invitation, the applicant indicated that he did not wish to bring any witnesses (CB 164).
b)One of the reasons why the Tribunal gave no weight to the statutory declarations is that they were in almost identical form and which is apparent on even a cursory inspection (CB 202.6).
The recognised test for apprehended bias is found in Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27] which indicates that apprehended bias would exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided. I am satisfied that the approach of the Tribunal in dealing with the four statutory declarations was reasonable. The reasoning in respect of this issue taken in the context of the balance of the decision does not support the claim of apprehended bias on the part of the Tribunal member. In the circumstances the third ground cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Mandarin interpreter. The applicant also had the assistance of a Court appointed panel advisor and a migration agent, who also prepared documents submitted to the Tribunal. The migration agent had the benefit of a previous Tribunal decision, although remitted for reconsideration, which raised a number of issues that were specifically drawn to the applicant and the migration agent’s attention as being issues of concern by the reconstituted (second) Tribunal. The response to this notification by the applicant with the assistance of a migration agent prepared further material to support his claims. This material was accepted and considered by the Tribunal in its decision making process.
The three grounds of review which were sourced from the amended application and the applicant’s submissions have been addressed by the written and oral submissions prepared by Mr Smith who appeared for the minister. I am satisfied that these three issues have been satisfactorily addressed and that no jurisdictional error arises from those issues.
This places a further obligation on this Court to independently consider the material before it contained in the Court Book and particularly the Tribunal decision which is the subject of this review. On a fair reading on the face of those documents is not apparent that any other jurisdictional error is evident. In the circumstances the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 27 June 2008
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