SZJCL v Minister for Immigration - [2007] FMCA 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 839

MIGRATION – Bias alleged – whether unprejudiced mind brought to the question – no bias – hearing adjourned for enquiries to be made – s.427 of the Migration Act does not impose a duty to make enquiries – s.424A letter sent by first Tribunal valid for purposes of second Tribunal.

Migration Act 1958 (Cth), ss.424A , 426, 427, 477, Div 4 Pt 7

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Lu & Anor v Renevier (1989) 91 ALR 39
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935
Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 222 ALR 411
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174

Applicant:

SZJCL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 2044 of 2006

Judgment of:

Turner FM

Hearing dates:

5, 19 March 2007

Date of last submission:

19 March 2007

Delivered at:

Sydney

Delivered on:

13 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr. R. Killalea

Counsel for the Respondent:

Mr. J. Potts

Solicitors for the Respondents:

Ms Elizabeth Warner Knight of Australian Government Solicitor

ORDERS

The application, amended application, and further amended application are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2044 of 2006

SZJCL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application to show cause filed on 25 July 2006 seeking to review a decision dated 27 June 2006 of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application was filed in Court by leave on 5 March 2007.
The applicant was born on 13 September 1954 and claims to be from the People’s Republic of China (“PRC”) and of Han Chinese ethnicity (“the Applicant”).
The applicant’s husband and daughter (born 29 July 1986), as well as her mother, two sisters and brother, remain in China.
The applicant arrived in Australia on 8 May 1999 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 3 June 1999. In this application she claimed that she “enjoyed quite a high position” as a doctor in China, but had also “suffered great injuries” as a result of her family history (CB 24). The applicant stated that her father had died shortly after being released from prison for “counter revolutionary crimes”, and her mother and elder sister were subjected to “inhuman treatment” during the Cultural Revolution (CB 24). The applicant claimed that she had supported the student movement of 4 June 1989, and, as punishment, lost six months wages. She claimed that she became a ‘district propaganda office executive’ of the Chinese Democratic Party (“CDP”) in 1998 and was engaged “in secret underground activities” (CB 24). The applicant claimed that members of the CDP were arrested and detained by the authorities, and that she had managed to escape out of China to Australia under the pretext of attending an international academic conference. The applicant claimed that the local police have since visited her family home to inquire about her whereabouts and to confiscate various documents. The applicant claimed political asylum for the following specific reasons:
I was interrogated by the work unit leaders; I didn’t get support from them; I was deprived of my right for promotions in the academic titles; I suffered greatly both in psychology and mind; I am a member of the Chinese Democratic Party which the Chinese authorities regard as illegal and reactionary organisation and I would be arrested like other members of the Party…my work unit has expelled me from the work and I wouldn’t be able to find any job in China. This would make it difficult for me to survive. (CB 24)
This application was refused by a delegate of the first respondent on 23 June 1999.
On 23 July 1999 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. Attached to the application was a copy of a letter dated 19 June 1999, written (according to the applicant) by the father of another applicant for protection (“male applicant”). Both applicants claimed to be work colleagues in China. The letter made reference to the applicants’ involvement in the CDP (CB 43).
With the consent of both applicants, a joint hearing was conducted before the Tribunal on 19 July 2000.
On 8 September 2000 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found that the letter from the male applicant’s father did not present a genuine account of the applicant’s circumstances (CB 117.2) nor was the Tribunal satisfied that the applicant was in fact a member of the CDP (CB 117.6)
The applicant sought review of the Tribunal’s decision by the Court, and on 11 October 2005 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 22 June 2006 a differently constituted Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal made the following relevant findings (CB 230-235) (highlighting added):
I am also satisfied that she supported the June 1989 protests in China and was penalised at the time. However, as she told the Tribunal, by 1993 she was not facing any ongoing disadvantage, and that the events of 1998 and 1999 relating to the China Democracy Party were the focus of her claims when she first applied for a protection visa. She did not claim to have been subject to any ongoing discrimination or harm in recent years because of the events of June 1989. That evidence is consistent with the absence of evidence in the sources searched by the Tribunal of a continuing interest by authorities in those who participated in the 1989 protests. A 1999 report suggests a further relaxation of the authorities' attitude toward the events surrounding Tiananmen Square. "Counter-revolution" (which is how events of 4 June 1989 have been described) is no longer a crime, and the protests at Tiananmen are now seen as "disturbances rather than the official 'counter-revolutionary riot'" ("Transforming Tiananmen", 1999, Asiaweek, 18 June). I am therefore satisfied, as [the applicant’s] written and oral evidence made clear, that she initially sought asylum in Australia solely on the basis of a fear of persecution arising from her membership of the CDP.
As to that claim, I have considered the following. I note, as did the first Tribunal Member, that her account and that of Mr… have been consistent with each other. That lends some plausibility to her account. However because of various other inconsistencies and aspects of the account which give rise to considerable doubt about its plausibility, I do not consider credible her claim to have been associated with the CDP.
In her evidence [the applicant] said that she mixed with pro-democracy people in China, was interested in their political theories and was impressed by their thoughts. For that reason she accepted the role as the CDP’s local “propaganda cadre”, a role she continued to play even after the crackdown on the CDP, being the only opposition party in China in 1998. These are the characteristics of a person interested in political change in China and willing to take some risks in order to achieve it. However during her seven years in Australia she does not claim to have participated in any activities at all in pursuit of that aim. Further, despite asserting to the Tribunal, quite reasonably, that western NGOs and media may remain unaware of the imprisonment of certain CDP members, she does not claim to have tried to remedy that situation by offering information about those known to her to any agency in Australia or elsewhere. She also does not claim to have sought any human rights organisation’s assistance in locating and making contact with CDP members who have fled China, or to have enquired about any CDP members’ circumstances at all – all of which options were open to her to undertake in confidence. In particular, she claims that a Mr Jianguo Cui was a member of the CDP whose current imprisonment may still not be known to non-government organisations abroad, or to the international media, yet she has taken no steps to pass on this information. In my view, despite her understandable concerns about her situation in Australia, her failure to do any of these things here, when they could have been done at little or no risk to her, shows a passivity not generally consistent with her claim to have been a propaganda cadre for the CDP, to have any serious interest in the CDP or its aims or to have any serious interest in political change in China.
[The applicant] claimed to the Tribunal that she had been following the activities of the CDP since her arrival in Australia and had been trying to contact CDP members for the past seven years (no evidence was submitted in support of these claims and, as I have noted, she has made no enquiries about them of human rights groups here). However her level of knowledge was not consistent with having any continuing interest in the CDP - she did not know of two significant developments relating to the party until the Tribunal brought them to her attention, the first being the establishment by the CDP’s leader of its “Overseas Exiles Headquarters” in the USA in 2004, which is in contact with supporters in many countries, and the second being its comprehensive statement of policy (the New Century Declaration) issued on 1 January 2000. It was also submitted, in favour of her general credibility, that [the applicant] had willingly contacted the CDP leader in the USA to seek verification of her membership. While I accept that she did contact him, she only did so after the Tribunal told her of the existence of the “Overseas Exiles Headquarters” and suggested she obtain documentation confirming her membership from it (RRT letter to RACS of 29 November 2005), a step which she could not have shown any reluctance to take without casting some doubt on the plausibility of her claim to be a CDP member.
There is also no evidence from anyone independently verifiable as a member of the CDP, or from the US-based Mr Xu Wen Li, who I have no doubt was the CDP’s leader in China and is in contact with many past CDP members, that [the applicant] ever had any link with this party. It is of course possible that the reason Mr Xu Wen Li does not know of her is, as was stated, that he was in prison during the relevant period. However [the applicant] has asserted that she has also asked Mr Li to help her locate Jin Zhu Zhang, who she claims was the CDP member and “known dissident” who sponsored her into the party. She has provided no evidence that she actually did make this request of Mr Li, and I cannot be satisfied that she did. The Tribunal thus has no evidence from Mr Li that Mr Zhang is known to him. It seems unlikely, although not impossible, that if Jin Zhu Zhang were a known dissident now in the USA who was active in the CDP in 1999, its leader would not know anything of him. In sum, the Tribunal has before it no confirmation from the CDP leader that he either knows of [the applicant], or knows anyone who can confirm her membership of the CDP, or knows of the person claimed by her to be her CDP sponsor.
I do not think it is unreasonable to expect that a person responsible for CDP propaganda would have been both an experienced activist and dissident, as well as thoroughly briefed by more senior CDP activists about the party’s policies. [The applicant] gave evidence that her anti-government activities prior to 1998 had consisted of a brief involvement in the June 1989 protests. She was unable to provide a cogent explanation as to why she was invited to act as a CDP “propaganda cadre”, apart from saying that the CDP wanted to attract female members. She was not provided with any training for that role beyond being given written material, and her evidence was that her main role was organising cultural or leisure activities. In short she does not appear to have been equipped by the party to attract new members to it, and I have strong doubts about the plausibility of her claim to have played the role she claims she did.
She has submitted two letters to Mr … from Mr Cui, who she claims is the brother of an imprisoned CDP member. I consider reliable the evidence from independent sources that international mail is monitored in China. It is also clear that Mr … address in Sydney must have been provided to Mr Cui by Mr …, after which Mr Cui wrote two letters to him whose purpose can only be to provide evidence of Mr … claims to this Tribunal (as was claimed by [the applicant]). In my view, the fact that the author unnecessarily provided his own full identity on the envelope, and included Mr … full name as addressee, reflects some confidence that the contents would not, even if checked by the PRC authorities, incriminate him in any way. As there is no evidence beyond these letters and [the applicant’s] (and Mr …) assertions that the author’s brother is in prison for political reasons, or was a member of the CDP, I do not propose to give any weight to these letters. [The applicant] has invited the Tribunal to ring the author of the letters in China to verify the content of the letters. I have considered this request but, as the Tribunal cannot confirm the author’s identity or the reliability of his account by ringing him, have not done this.
As to [the applicant’s] claim that individuals connected with her workplace have told her that the Australian Embassy revealed some information about her to her employer, as a result of which she is now at risk, I am not satisfied that such information was ever revealed. The evidence provided both by DIMA and DFAT is detailed and unequivocal and reflects that a thorough check was done in response to the Tribunal’s recent enquiries on this matter. [The applicant’s] records were located at the post by DFAT and DIMA respectively, and contained no record of any contact with the hospital. It is also clear that the post was aware that she had made a protection visa application, and that it was a long established procedure that under those circumstances no such enquiry would have been made. [The applicant] has claimed she has been informed that a “fax” was sent to the hospital from the post, and I note that the person with whom Mr Carney spoke on 31 May 2006 (Statutory Declaration of 1 June 2006) told him that a letter referring to the “Democracy Party” was faxed to the hospital. One would therefore expect that it would have remained on [the applicant’s] (or Mr …) files at the Australian embassy, but it is apparent from the post’s response to the Tribunal’s enquiries that there is no copy of it on those files. Indeed the Tribunal has before it no record of its having actually been sent to the post from Australia. Mr Carney has also suggested that, because it would not have been established procedure to contact the hospital, it is possible that a telephone call was made by someone at the post which that person chose not to record on the file. That is possible but unlikely, because in that scenario the letter would have remained on the files, even if no record of the telephone call was kept. It is also entirely unclear from any of the arguments presented what might have been gained by the post revealing to the hospital that [the applicant] had applied for a protection visa or was claiming to be a member of the CDP. While her employer obviously knows that [the applicant] did not return to her workplace at the time she undertook to do so, I am not satisfied that the hospital was given any information by the post about her. For that reason I have not contacted the individuals in China whose telephone numbers have been provided to the Tribunal, and who it is claimed will state that such information had been given. The Tribunal cannot establish their identity or reliability as witnesses with confidence. That is also true of Mr Yu Le. I prefer the evidence from the post and consider it reliable. Therefore I do not consider that [the applicant] has been truthful that anyone has told her (other than for the purpose of enhancing the present application) of an enquiry by the post linking her with the CDP.
I accept that she failed to return from a work-related trip to her position at the hospital when expected, and am satisfied that she has been dismissed from that position for that reason. I accept that the letter she has submitted confirming this is genuine. However I am not satisfied that the letter purporting to be from her employer linking her with the CDP is genuine. As has been put to her, by the time it was issued she was no longer an employee of the hospital and its content was therefore redundant. Further, its letterhead and general appearance differed considerably from the other letter she submitted from the same workplace. Mr Carney has argued that, if it were fraudulent, it would be more, rather than less, likely to have an identical letterhead. However, even if it is a letter issued on an alternative letterhead which was being used by the hospital in 1999, in light of my very strong doubts about [the applicant’s] general credibility, I am not satisfied that it was obtained or written for any reason other than to enhance her application for the protection visa. In light of my strong doubts about her general credibility and the difficulty in establishing definitively what letterheads were used by the hospital in 1999, I do not propose to make the enquiries she has suggested with regard to the hospital’s past letterheads.
I have considered how much weight can fairly be given to the fact that, as her witness, Mr … readily answered several questions about the last CDP meeting the two claimed to have attended. His answers were consistent with oral evidence she had just given the Tribunal in response to several specific questions. [The applicant] has since claimed (statement of 2 May 2006) that when she wrote notes about the last CDP meeting she and Mr … had attended she had no idea he would be called into the room during her hearing. She has claimed that she did not place her responses to my questions about that meeting in such a way that he could easily see them. However I note that Mr … was named as a witness by [the applicant] on her “Response to hearing invitation” (received by the Tribunal on 14 November 2005), from which I am satisfied that she was expecting the Tribunal to take evidence from him. Further, before he entered the hearing room I told [the applicant] that I intended to ask him the same questions as had been put to her about the CDP meeting. In light of my strong doubts about [the applicant’s] general credibility, my observations of both Mr … and [the applicant] while Mr … was giving evidence about the meeting (which included his appearing to repeatedly focus on the page held by [the applicant] which was turned towards him) and the fact that he volunteered the answer to a question not yet posed, but which was answered in [the applicant] notes, I am unable to rely on the evidence he gave about that meeting. In sum, although consistency between the two accounts of the meeting would otherwise have added to the plausibility of [the applicant’s] claim to have attended such a meeting, I am unable to rely on it in this case.
For the above reasons I do not consider credible [the applicant’s] claim to have been associated with the CDP.
[The applicant] claimed (statement of 2 May 2006) to have been held at Villawood immigration detention centre for five weeks, during which time the Department staff told her she would have to return to China and gave information about her to the Chinese authorities so she could be granted a travel document. I accept that that may have occurred. She made no further claim in relation to this matter - however it is possible, and I am satisfied, that the PRC authorities may assume that she has overstayed a visa in Australia. Even if they assumed that she had also applied for a protection visa, DFAT’s evidence (2003) is that this would not give rise to any serious politically-motivated harm in China unless there were grounds for assuming her to be politically active in some way. It is possible, as DFAT (2003) has indicated, that if she were to return to China she may face some monitoring of her movements. However, as [the applicant] has not been a critic of the PRC government since her arrival in Australia, nor indeed for some seventeen years, and I am not satisfied that she holds dissident views which she may wish to express if she returns to China, I am not satisfied that she might face anything more serious than monitoring, and consider that that would not amount to persecution.
For these reasons I am not satisfied, and do not accept, that [the applicant] left China for the reasons she has given, nor that she might be imputed with an anti-government political opinion if she returns to China. She does not have a well-founded fear of Convention-related persecution in China.
Having considered the evidence as a whole, the Tribunal is not satisfied that [the applicant] is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore she does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The applications

In her application, the applicant set out three grounds of review. An amended application was filed with the applicant’s submissions which stated that the application is wholly amended. A second amended application was filed in Court by leave on 5 March 2007. The grounds and particulars in that second amended application are the only grounds and particulars relied on by the applicant. Those grounds and particulars are as follows:
(1)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT failed to consider particular integers of the Applicant’s claims.
Particulars:
·Applicant’s statement, 2 May 2006, [62] (CB 177) – [62] claims not considered by RRT
·Applicant’s statement, 2 May 2006, [63] (CB 177) – [63] claims not considered by RRT
(2)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT failed to comply with s.424A of the Migration Act in respect of:
(i)findings of an examination conducted by the Document Examination Unit
(ii)information that the Applicant did not claim to (a) “have participated in (political) activities at all…”, (b) “to remedy that situation” (re NGO’s being unaware of imprisonment of certain CDP members); and (c) “to have sought any human rights organisations assistance (re making contact with CDP members (etc)…)…”
Particulars:
(i)Minute of Document Examination Unit dated 7 August 2000; Statement therein that (re TTH letter of 6 July & 15 August 1999) “information from overseas sources advises that these documents are genuine”; RRT’s finding (without stating reasons) that TTH’s letter of 6 July 1999, that RRT was not satisfied that letter of 16 October 2007 was genuine (CB 233.8) in either its form or (in any case) its content (CB 234.2); the RRT did not seek, as required by s.424A, the Applicant’s comments on the DEU’s report re the TTH letter of 6 July 1999.
(ii)RRT’s Decision Record, CB 231, 3^rd paragraph.
(3)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the decision of the RRT was attended by an apprehension of bias.
Particulars:
(i)The RRT declined to approach 3 witnesses (put forward by the Applicant (CB 174, [41]-[44]) because “The Tribunal cannot establish their identity or reliability as witnesses with confidence” (CB 233.7). The RRT had been informed that DIMIA (Beijing) could conduct covert inquiries of the TTH (Supp Docs, 7.8); and
The RRT declined the Applicant’s request that the RRT contact Mr Cui, the author of two letters to the Applicant’s co-worker, on the basis that “…as the Tribunal cannot confirm the author’s identity or the reliability of his account by ringing him, have not done this” (CB 233.2).
(ii)The RRT declined to make inquiries about whether different letterheads were used by the TTH “in light of my strong doubts about her credibility and the difficulty of establishing definitively what letterheads were used by the hospital in 1999, I do not propose to make the enquiries she has suggested with regard to the hospital’s past letterheads” (CB 234.2).
(iii)The RRT found the TTH letter of 6 July 1999 to be genuine (CB 233.9) even though, presuming a basis for that conclusion being the DEU’s finding that the letter was genuine, the RRT had found (CB 220.2) that it could not rely on the DEU’s finding, in relation to the TTH’s letter of 16 October 1999, where such finding was based, as for the TTH letter of 6 July 1999, on “information from overseas.”
(4)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT failed to consider exercising its discretion under s.427(1)(d) to require the Secretary to:
(i)investigate the Document Examination Unit as to its basis for stating “information from overseas advises that this document is fraudulent”;
(ii)investigate the Document Examination Unit as to its basis for stating “information from overseas advises that this document is genuine”;
and/or
(iii)investigate the predecessor of PMOC Coyne having been informed by P Coyne that “it may be necessary that the advice re the ad hoc document was in fact provided by my predecessor”.
Particulars:
· Re (i) and (ii) – Minute of Document Examination Unit, dated 7 August 2000, signed “Sharon Kennedy, Document Examiner”,
· Re (iii) – Email of P Coyne of 3 April 2006 (Supp Docs 1.3)

The case for the applicant

The applicant submitted that:
(a)“There were integers of the applicant’s claim which were not dealt with by the Tribunal (Transcript (5 March) 2);
(b)There should have been a s.424A letter regarding the response from the Document Examination Unit (“DEU”);
(c)There should have been a s.424A letter in relation to the finding that certain claims were not made by the applicant (Transcript 5);
(d)The decision of the Tribunal is attended by an apprehension of bias;
(e)The Tribunal failed to consider exercising its discretion under s.427(1)(d);
(f)The applicant put forward letters dated:
·15 June 1999 (in fact 15 August 1999) (CB 57 and 210)
·19 June 1999 (CB 43)
·6 July 1999 (CB 85)
·16 October 1999 (CB 56)
The letter of 16 October 1999 refers to the applicant being in the Democratic Party of China (“DPC”) which is supportive of the applicant’s position.” (The Court notes that the correct name of the party is the “Chinese Democracy Party” (“CDP”) (CB 225.1)).
“The Tribunal requested the Document Examination Unit (“DEU”) to examine the letters of:
·6 July 1999 (Doc 1) (CB 85)
·15 August 1999 (Doc 2) (CB 57), both of which were said to have been issued by the hospital where the applicant worked, and
·16 October 1999 (Doc 3)” (CB 56).
The DEU issued a report (Exhibit A1). The DEU concluded that information from overseas advises that documents 1 and 2 are genuine and document 3 is fraudulent (Transcript 5).
The letter of 16 October 1999 supports the applicant’s position that she was in the DPC and was expelled from the hospital for that reason.”

Section 424A letter

(g)“The second Tribunal sent a s.424A letter (CB 124) saying that there are indications that the letter of 16 October 1999 is not genuine (Transcript 6)
·as the letter of 6 July 1999 says that the applicant had gone on leave from the hospital and had failed to return and is considered to have left her post;
·and the letter of 19 June 1999 (CB 43) refers to being “dismissed from your job at the hospital” which has not yet occurred.

The s.424A letter continued that the letter of 6 July 1999 indicates that “if the letter of 16 October 1999 is not genuine, this could indicate that you were not dismissed for your political activities.” The letter of 19 June 1999 refers to the applicant’s dismissal, which had not yet occurred (cross-reference – letter of 6 July – “you left your post”) and may have been written “merely to support your application.”
At CB 125 the Tribunal stated in a s.424A letter that
if the letter of 16 October 1999 is not genuine this could indicate that you were not dismissed for your political activities, which may in turn cast doubts on your general credibility. (Transcript 6, line 45)

(h)A second s.424A letter was sent on 10 April 2006 (CB 163) – “The Tribunal will not rely on the opinion of the DEU about the genuineness of the letter of 16 October 1999.” Inferentially the Tribunal was saying that what the DEU said about the letter of 16 July 1999 stands, that is, that information from overseas is that the document of 6 July 1999 is genuine (Transcript 8, line 12).
(i)At CB 233.8 the Tribunal accepted that the applicant failed to return to work at the hospital and was dismissed for that reason (Transcript 10, line 25).
(j)The applicant submits that the Tribunal had to rely on the DEU minute in order to say that the letter of 16 October 1999 was not genuine (Transcript 10, line 36).
The Court rejects that contention. In the s.424A letter of 10 April 2006 (CB 163) the Tribunal stated that it “will not rely on the DEU minute about the genuineness of the letter of 16 October 1999”. The Tribunal then set out why it could conclude that
at least one of the letters is not genuine and thus that your (the applicant’s) claims to have been identified as a member of the CDP (sic) are untrue.

The Tribunal found that it was not satisfied that the letter (of 16 October 1999) linking her with the CDP is genuine (CB 233.9). A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45.
The Court will turn to the issue of s.427 of the Migration Act later in this decision.
It was then put for the applicant that
because the Tribunal had to rely on the DEU minute to find that the letter of 6 July 1999 was genuine, the Tribunal had to put to the applicant, in accordance with s.424A, was that it had the DEU minute as to the authenticity of the letter of 6 July and that given that there were differences between the letters, comments were sought because…those matters were relevant to the issue of whether or not the letter of 16 October was genuine. (Transcript ll, line 25)
The Court finds that the s.424A letter of 28 October 2005 (CB 124) raised those issues with the applicant. The issue was raised again in the s.424A letter of 10 April 2006 (CB 163).
The applicant complains “that the s.424A letter (at CB 124) makes no suggestion that the letter of 6 July 1999 may be other than genuine” (Transcript 11, line 35). The Court accepts that submission, but notes that the Tribunal accepted in its decision (CB 233.9) that the letter of 6 July 1999 is genuine. That was a finding of fact properly open to the Tribunal.
The applicant then returns to ground 1 and alleges that “the Tribunal failed to consider claims by the applicant, as set out in paras.62 and 63” on CB 177 (Transcript 12, line 19) as follows:
62. I fear the government would also interrogate and torture me about what they suspect I know about people involved in the CDP, and also about Chinese activists in Australia and what happened in Villawood.
63. I refer you to the widely available country information that supports my claims by demonstrating that any person involved with the CDP and anti-CCP activities in China or overseas faces persecution and imprisonment in China.
At Transcript 13, line 20 it is submitted for the applicant that it was open to the applicant to make claims before the Tribunal that were not put to the delegate (Transcript 13, line 20). It is not necessary for the Court to decide that issue. The Court holds that as the Tribunal found that is did “not consider credible her claim to have been associated with the CDP” (CB 231.3, 234.6); that general finding covered the claim that she would be questioned about her knowledge of people involved in the CDP, or about Chinese activities in Australia, or about what happened in Villawood, or that “people involved with the CDP face persecution and imprisonment in China.” It was therefore not necessary for the Tribunal to deal separately with the claims in paras.62 and 63 on CB 177. Those claims were dealt with by the general finding that the applicant had not been associated with the CDP.

Apprehension of bias

The third ground raised for the applicant is “an apprehension of bias” (Transcript 13, line 46). No allegation of actual bias is made. “The test for apprehended bias being whether a lay observer to the proceedings would have a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him.” The Court accepts this as being the correct test. The three bases for this ground are said to be:
·declining to approach witnesses (see CB 233.7 and 174, statement paras.41-44);
·declining to make appropriate enquiries about documents;
·“differentially refusing to rely on particular information”.
(Applicant’s written submissions, paras. 17-19).

Declining to approach witnesses

The applicant claimed to “have been informed by people in China that the Australian Embassy had contacted those persons.” It is then conceded by the applicant that “inquiries were made of the post” (Transcript 14, line 47) and “inquiries were made of both the Department of Immigration and Department of Foreign Affairs at the Beijing Embassy” (Transcript 15, line 1). The Tribunal concluded that it was
not satisfied that the hospital was given any information about her. For that reason I have not contacted the individuals in China whose telephone numbers have been provided to the Tribunal…The Tribunal cannot establish their identity or reliability as witnesses with confidence…I prefer the evidence of the post and consider it reliable. (CB 233.8)
The Tribunal concluded that
The evidence provided by DIMA and DFAT is detailed and unequivocal and reflects that a thorough check was done in response to the Tribunal’s recent enquiries on this matter.
(being the applicant’s claim that individuals connected with her workplace had told her that the Australian Embassy revealed some information about her to her employer, as a result of which she is now at risk). The Tribunal then made a finding of fact that “I am not satisfied that such information was ever revealed” (CB 233.2).
The Tribunal therefore had the results of various enquiries and accepted that evidence. That was a conclusion properly open to the Tribunal. It was open to the Tribunal also to find that it could not establish the identity and reliability of the witnesses with confidence.
As to the authenticity of two letters provided by the applicant, the Tribunal considered the request to contact witnesses in China to verify the content of the letters but found “as the Tribunal cannot confirm the author’s identity or the reliability of his account by ringing him, have not done this” (CB 233.1). The Court holds that it was open to the Tribunal to make those findings of fact and they are not subject to review. The Tribunal considered whether to make the enquiry and decided not to.
As to the hospital’s use of letterheads, the Tribunal found at CB 234.2 that:
In light of my strong doubts about her general credibility and the difficulty in establishing definitively what letterheads were used by the hospital in 1999, I do not propose to make the enquiries she has suggested with regard to the hospital’s past letterheads.
The Court holds that those findings were properly open to the Tribunal.
The applicant complains that the Tribunal was “prejudging witnesses and their credibility”. The Court rejects that contention; the Tribunal was merely saying that there was difficulty in establishing their identity or credibility. That finding of fact was properly open to the Tribunal.

Declining to make enquiries about documents

The extent of enquiries made by the Tribunal is supported by the documents in the supplementary Court Book:
·CB 4 is a copy email dated 7 March 2006 from DIMA asking DIMA at the Beijing Post to do exhaustive checks about whether letters which had been forwarded for checking by the DEU, were shown to the hospital staff. The response is set out at CB 5.
·CB 2 is a copy email dated 27 March 2006 from Peter Bouris, a senior researcher at the RRT to DIMA Beijing asking for an exhaustive check of case files (CB 2A.3) relating to the three letters examined by the DEU.
·CB 1 is a copy email dated 3 April 2006 from Peter Bouris to Peter Coyne (in the Minister’s office) with a ‘cc’ to Philip Richards (the Primary Migration Officer Correspondence in Beijing) with a response to Peter Coyne.
·CB 7 is a copy email dated 5 April 2006 from Philip Richards (PMOC in Beijing) to Peter Bouris (senior researcher at the RRT).
The applicant complains that the Government could have contacted the witnesses. The Tribunal set out its conclusions about being unable to be satisfied as to the identity and reliability of witnesses. The Court holds that it was properly open to the Tribunal to reach those conclusions.
Having regard to the enquiries made, and the reasons stated by the Tribunal, the Court finds that there is no reasonable basis for an apprehension of bias. The Tribunal did not simply “refuse to contact witnesses”; proper enquiries were made and conclusions were reached.
The applicant raises again the issue of different letterheads (Transcript (5 March) 18, line 23) and complains that the Tribunal declined to make any enquiries about the letterheads. The Court finds that it was properly open to the Tribunal to conclude that there would be no utility in making enquiries when it stated at CB 234.2
However, even if it is a letter issued on an alternative letterhead which was being used by the hospital in 1999, in light of my very strong doubts about [the applicant’s] general credibility, I am not satisfied that it was obtained or written for any reason other than to enhance her application for the protection visa.
The Tribunal then concluded:
In light of my strong doubts about her general credibility and the difficulty in establishing definitively what letterheads were used by the hospital in 1999, I do not propose to make the enquiries she has suggested with regard to the hospital’s past letterheads.
The Court holds that all of the findings of fact in that passage were properly open to the Tribunal, as was its decision not to make the enquiries. There is nothing in that decision to raise a reasonable apprehension of bias.
It is clear that the Tribunal made extensive enquiries (CB 214.6, 214.7, 214.8 – 9, and 215.8) and even cancelled a hearing so that as the enquiries could take some time (CB 214.7) “no deadline was placed on these matters” (CB 220.10).

“Differentially refusing to rely on particular information”

The applicant says that
the third basis for an apprehension of bias is the Tribunal stating in its second 424A letter that it wasn’t going to rely on the DEU minute in relation to the letter of 16 October 1999 not being genuine, because it had not been established to the satisfaction of the Tribunal on what basis the DEU had made that finding, and then relying on the finding as to the letter of 6 July 1999. (Transcript 18, line 48)
The Tribunal noted that the letterheads of 15 August 1999 and 16 October 1999 were different. It concluded that the letter of 6 July 1999 was genuine. The applicant complains about the Tribunal making that finding. The Court notes that the letterheads of 6 July and 15 August are the same, and both letters state that the employee was regarded as “leaving his/her official post”, and that “no termination benefit be paid”. To proceed further, the Court would be entering into an impermissible review of the merits. Suffice to say that the conclusion that the letter of 6 July was valid was a conclusion properly open to the Tribunal on the material before it: There was no suggestion to the Tribunal that the letter was not valid: The applicant stated that the letter was valid. This allegation raises no ground for a reasonable apprehension of bias.
The applicant then alleged that the fourth ground for an apprehension of bias was the Tribunal declining to make enquiries about the different letterheads (Transcript (5 March) 18, line 22). The Tribunal set out its reasons for not making enquiries at CB 233.9-234.2. Those reasons have been referred to above. The findings of fact and conclusions were properly open to the Tribunal. They do not give cause for a reasonable apprehension of bias especially as a hearing was adjourned and no deadline was placed on the enquiries.

Tribunal’s discretion under s.427(1)(d)

The applicant then turned to the fourth ground of complaint which is the allegation “that the Tribunal failed to consider exercising its discretion under s.427(1)(d)” (Transcript 20, line 24).
Section 427(1)(d) is as follows:
Powers of the Refugee Review Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
……
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
On the basis of what is set out above, it is clear that the Tribunal exercised its discretion and considered having enquiries made, but for the reasons it set out, decided not to do so (CB 233.1 and 234.1), beyond the enquiries that were in fact made.
·As to the letters, the Tribunal made follow up enquiries after the DEU minute was received (Transcript (5 March) 19, line 45 – 20, line 14);
·The Tribunal made enquiries through the Department of Foreign Affairs and Trade, and
·The Tribunal made enquiries through the Department of Immigration and Multicultural Affairs about the allegation that Australian Embassy officials in Beijing had contacted the applicant’s work place in 2000 (CB 233.3).
The Court accepts the submission for the first respondent that the Tribunal had not duty under s.427 to investigate. The Court finds that the Tribunal considered having further investigations made, and set out its reasons for deciding not to investigate further (CB 233.1, 233.9, 234.2).
The applicant relies on the decision in M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 para.65 for the submission that “the Tribunal should have used its power to make enquiries under s.427(1)”. One factor in M164/2002 for deciding that the power available to the Tribunal to make enquiries should have been used in that case was “the ease with which enquiries could have been made to test the authenticity of the documents presented.” The Tribunal in the present case stated the difficulties in establishing the identity and truthfulness of the witnesses, and whether different letterheads were used by the hospital in 1999. They were findings of fact properly open to the Tribunal and are not open to review. Having made those findings, the present case is distinguishable from M164/2002 in a fundamental way. Those findings in the present case were matters which the Tribunal was properly entitled to take into account in deciding whether further enquiries should be made. It is not for this Court to say that the Tribunal should have exercised its discretion to have enquiries made when it had found that there would be difficulties in doing that. There is no reference in M164/2002 to the Tribunal in that case having made such findings. The difficulties involved in the present case were an “impediment to the conduct of such enquiry”: M164/2002 (ante) at [76]. No such findings were made in M164/2002. That is a further basis for distinction.
The Court notes that the decision of the High Court in Minister of Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 was not referred to in M164/2002. In SGLB the High Court decided (per Gleeson CJ, Gummow and Hayne JJ) at para.43
Secondly, whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
Further, the decision in M164/2002 (ante) does not refer to the decision of the Full Court of the Federal Court of Australia in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 per curiam at [21]:
Counsel accepted that s 427(1)(d) had been held by earlier decisions of this Court not to create an enforceable duty on the Tribunal. However, she said that in certain exceptional circumstances, such as existed in the present case, the Tribunal may be under an obligation to exercise the power, or at least an obligation to consider whether to exercise it. She referred to a statement of Allsop J in Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935 at [26] that
“… there could be circumstances thrown up by a particular claim in its context where it could be said that the circumstances were such as to oblige the Minister or the Tribunal to consider whether it ought to exercise such a power. Indeed, it is conceivable that there could be a confluence of circumstance and claim whereby there came to be an obligation to exercise the power.”
See also his Honour's observation in Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [113].
The Court invited counsel to formulate any principled basis for identifying the exceptional circumstances in which this residual obligation under s 427(1)(d) might arise.
……
[24] But in any event it is clear that s 427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure "required by the Act" within the meaning of s 476(1)(a). In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86] the Full Court said:
“If, as his Honour in our view correctly held, s 427(1)(d) does not impose any duty on the Tribunal to make further enquiries, it is difficult to see how the Tribunal could have erred in law by assigning what is said to be a reason that is factually incorrect (that such enquiries would not assist) for not doing something it was not legally obliged to do.”
By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some "confluence of circumstance and claim" which somehow enlivened some dormant residual obligation under s 427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s 427(1)(d). No such obligation exists.
The circumstances in the current case are distinguishable from those in M164/2002 which was delivered per incuriam. The Court is bound to apply the decision in SGLB. The Court finds that there was no duty to require the Secretary to make enquiries: The “Secretary” in s.427(1)(d) refers to the Secretary of the Department: s.5(1). There is nothing in s.427(1)(d) as to exactly what should be investigated, other than “any investigation that the Tribunal thinks necessary with respect to the conduct of the review.” Further enquiries were made as referred to in Exhibits A1 and A2. The Court notes that the DEU minute (Exhibit A1) is dated 7 August 2000, and the request for further information was sent over five years later, on 30 November 2005. A reasonable observer would not think it strange that records could have been misplaced in that time. A reasonable observer would observe also, that the Tribunal was seeking further information to investigate the case and it therefore had an open mind. It is clear from its decision that the Tribunal considered making further enquiries but decided not to do so (CB 233.1 and 234.1) No reasonable ground for an apprehension of bias has been shown, and in fact the Tribunal had the Department of Immigration and Multicultural Affairs make enquiries (CB 215.8, 233.2 and 234.2) and made enquiries with the Department of Foreign Affairs and Trade (CB 214.9).
The Tribunal exercised its discretion under s.427(1). The decision not to make further enquiries was not a lack of good faith, as the Tribunal stated its reasons for so deciding. Those findings were properly open to the Tribunal on the material before it. The Court considers that the Tribunal in the present case exercised its powers in a fair and even-handed manner. It considered the material before it, and then made findings of credibility and fact that were properly open to it. There was no breach of the natural justice hearing rule set out in Division 4 of Part 7 of the Migration Act.
The applicant has sought to rely on the decision in Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 at 561 for the proposition that the Tribunal could be under an obligation pursuant to 427(1)(d) in certain circumstances to make a particular enquiry. This issue has been dealt with above.

Claims not made by the applicant

The applicant referred to CB 231.5 and stated that she did not claim various matters set out in the ‘Findings and Reasons’ on that page. The Court notes that the Tribunal stated that the applicant did not make the claims referred to. The applicant submits that a major conclusion was drawn in respect of the claims that the applicant did not make, as follows: “For the above reasons I do not consider credible the applicant’s claim to have been associated with the CDP.”
The Court notes that the applicant claimed that initially she sought asylum in Australia solely on the basis of her fear of persecution arising from membership of the CDP (CB 231.2). She gave evidence that she accepted the role as the “CDP’s local propaganda cadre” (CB 231.4). The Tribunal then recorded the matters that the applicant did not claim (CB 231.5) and reached the findings of fact properly open to it that “it did not consider credible [the applicant’s] claim to have been associated with the CDP.”
The applicant claims that the things that she did not claim had to be put to her in a s.424A(1) letter. However, those conclusions of the Tribunal as to claims that were not made are not “information” for the purposes of s.424A(1). SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62: “information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.” Also see SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 at 206. The matters referred to are subjective reasoning or conclusions reached by the Tribunal. The conclusions do not record facts given in evidence; to the contrary, they record conclusions reached because evidence/facts to the contrary were not put forward. It was not information but a lack of assertions that led to the conclusions or observations. It was not a case of gaps in previous material being relied on by the Tribunal to make an adverse positive finding as considered in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174. No breach of s.424A occurred.

The case for the respondents

The first respondent contended as to the grounds in the second amended application as follows:
Ground 1 alleges a failure to deal with integers of the claims, being the claims in paras.62 and 63 on CB 177 that the applicant feared that the Chinese government would interrogate her about what they suspected she knew about people involved in the CDP, and about Chinese activists in Australia and about what happened in Villawood.
The first respondent contends that those claims were considered by the Tribunal (the claims as to Villawood are set out at CB 175 paras.46 and 47).
The Court finds that the Tribunal dealt with those claims by finding at CB 231.3 that “I do not consider credible her claims to have been associated with the CDP.” It follows from that finding that the applicant would not be interrogated about what the Chinese government suspected she knew about people involved in the CDP. Further, the findings of the Tribunal at CB 231.5 that “during her seven years in Australia she does not claim to have participated in any activities at all in pursuit of that aim” (being political change in China) deals with the claim that the Chinese government would want to interrogate her about Chinese activists in Australia, and about what happened in Villawood.
The Court accepts the submission for the first respondent that the decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 means that the Tribunal does not have to refer to each and every contention in its written reasons, because findings may be subsumed in findings of greater generality or that there is a factual premise upon which a contention rests which has been rejected (the factual premise that have been rejected here are that the applicant was associated with the CDP, or that she participated in Australia in any activities in pursuit of political change in China.) The Court finds that the claims referred to in ground one (as set out on CB 177 paras.62 and 63) were dealt with by the Tribunal.
The first respondent says as to ground 2, being the s.424A ground, “that it has two parts, the first being the DEU minute (Exhibit A1); the second being certain findings in the Tribunal’s reasons.” As to the first part, that “the Tribunal relied on information from the minute of the DEU that the letter of 6 July was genuine and should have been put in a s.424A letter”, the first respondent says that:
·“It relies on obiter in the decision of the High Court in VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 414 para.12 that
the Tribunal said in its reasons, that it did not act on the letter or the information that it contained. That is reason enough to conclude that s.424A was not engaged.”
The Court accepts that conclusion as having application in this case.
·The first respondent continued: “The Tribunal did not rely on anything drawn from that minute in reaching its decision. The Tribunal disclaimed any reliance on the minute at CB 163.10.”
The Court agrees: The Tribunal said it would not rely on the minute as to the letter of 16 October 1999 not being genuine (CB 163) and made its own examination of the other letters (CB 163.10 and 233.10). In doing so the Tribunal made it clear that it was not relying on the DEU minute to establish the validity of the other letters. It concluded that it could infer from its considerations that one of the other documents is not genuine: It did not rely on the DEU minute in reaching that conclusion: It reached that conclusion as a result of its own considerations (CB 233.9-234.2); the applicant’s solicitors understood the Tribunal to be saying that it would not rely on the DEU minute at all (CB 181.5). The Tribunal had grounds apart from the DEU minute to establish that the letter of 6 July was genuine as the applicant had stated in her written submissions at CB 131.1 that the letter is genuine and refers to the decision on 6 July 1999 to terminate her employment (CB 133.3).
The word “information” in s.424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: SZEEU v MIMA and SZCIJ v MIMA (supra). The Court concludes that the Tribunal did not use information from the DEU minute as the reason or part of the reason for its decision. The Court accepts that the DEU minute was the subject of a s.424A letter (CB 92) albeit before a previous Tribunal.
As stated by the Full Court of the Federal Court of Australia in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at para.39
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
The Court accepts that the s.424A letter (CB 92) sent by the previous Tribuanl was valid for the purposes of the subsequent Tribunal hearing. The Court finds that a second s.424A (1) letter referred to the contents of the DEU minute and its relevance (CB 124). A further s.424A letter was sent which referred to the DEU minute and its relevance (CB 163).
The first respondent submits that
…it is not necessary for the Court to decide whether the DEU minute was given to the Tribunal by the applicant for the purpose of the application, and therefore comes within the exception in s.424A(3)(b), As s.424A letters were sent it is not necessary to look at the exception.
The Court accepts that submission.
The first respondent contends as to the second part of ground 2 that “it was not put in a s.424A letter that the applicant did not claim the matters set out at CB 231.5”, “that the detail is not “information” for the purposes of s.424A”. The Court agrees for the reasons already expressed. The Court finds no breach of s.424A.
Ground 3 is apprehended bias. Particular 1 is a failure to approach witnesses. The first respondent says as to the failure of the Tribunal to contact the author of letters sent by the brother of an imprisoned CDP member, “that the Tribunal recorded at CB 233.1 that it had been invited to contact the author in China to verify the contents of the letters, but as it cannot confirm the author’s identity or the reliablity of his account by ringing him, have not done this.” The first respondent contends “that the Tribunal was entitled to take the view that contacting witnesses would not be corroborative of the content of the letters and therefore there was no reason to contact the author.” The Court accepts that submission, and finds that the conduct of the Tribunal would not give rise to grounds for a reasonable apprehension of bias.
As to the contention by the applicant that someone in the Australian Embassy in Beijing had contacted her (sic) hospital in 2000, the first respondent contends that “the Tribunal had made enquiries through both the Department of Foreign Affairs and Trade and the Deparment of Immigratin and Multicultural Affairs, and had notified the applicant in a s.424A letter that those enquiries did not reveal any communications as alleged” (CB 163-4). In reponse, the applicant invited the Tribunal to contact further people. The first respondent refers to the reasons of the Tribunal (CB 233.7) that “I am not satisfied that the hospital was given any information by the post about her (that conclusion is supported by the finding that the records held by DFAT and DIMA contained no record of any contact with the hospital). For that reason I have not contacted the individuals in China”. And at CB 233.8:
I prefer the evidence from the post and consider it reliable and therefore I do not consider that [the applicant] has been truthful that anyone has told her (other than for the purposes of enhancing her present application) of any enquiry by the post linking her with the CDP.
The Court holds that it was open to the Tribunal to accept the reports from DFAT and DIMA and then decide not to contact the individuals in China.This conduct is not cause for a reasonable apprehension of bias.
The first respondent submits as to the letter of 6 July 1999 (Transcript (19 March) 13, line 33) “that the Tribunal was prepared to assume in the applicant’s favour that the letter was genuine and therefore there was no reason to make enquiries about the letterheads, as the assumption was made in the applicant’s favour and did not weigh to the applicant’s detriment in the decision”. The first respondent contends that “the conduct of the Tribunal does not show any prejudgment by the Tribunal”. The Court accepts that submission. The fact that the Tribunal adjourned a hearing and imposed no deadline for enquiries to be made indicates that the Tribunal was not biased.

The Court finds that the Tribunal considered contacting witnesses but having regard to evidence it had, and the difficulties involved, it decided that no useful purpose would be served by doing so. An observer would not get a reasonable apprehension of bias; rather, the Tribunal gave good reasons why it did not make further enquiries. The Court accepts the submissions for the first respondent that “the conduct does not show any prejudgment of the case, other than that it had made adverse findings as to the credibility of the applicant.”
The second particular of apprehended bias is that the Tribunal declined to make enquiries about whether different letterheads were used by the hospital in 1999. The Tribunal set out its reasons for not making enquiries as
In light of my strong doubts about her general credibility and the difficulty in establishing definitively what letterheads were used by the hospital in 1999, I do not propose to make enquiries she has suggested...(CB 234.2)
The Tribunal therefore considered making the enquiries but decided, for the reasons expressed, that it would not do so. An observer would not have a reasonable apprehension of bias.
The third particular of apprehended bias is that the Tribunal found the letter of 6 July 1999 to be genuine even though it found that it could not rely on the DEU finding in relation to the letter of 16 October 1999. The Court accepts the submission for the first respondent that
to the extent that it [the allegation of bias] rests on an assertion that the Tribunal relied on the DEU minute to find that the letter of 6 July 1999 was genuine, then that assertion is wrong.
One basis for the Tribunal finding that the letter of 6 July 1999 is genuine is set out at CB 131.1 where the applicant stated “I agree that the letter is genuine.” Also, the Tribunal made its own examination of the letter (CB 163.10 and 233.9).
The fourth particular of the complaint of apprehended bias is the decision not to make enquiries about the DEU minute. The Court notes that the Tribunal stated that it would not and did not rely on the DEU minute (CB 163.10 and 220.3). The Tribunal did not state anywhere in its decision that it was relying on the DEU minute. The decision shows that the Tribunal did make follow-up enquiries (CB 214.5, 214.8, 215.8, 233.3, 233.6).
The fourth ground of complaint is that
…the Tribunal failed to exercise its jurisdiction because it failed to consider exercising its decision under s.427(1)(d) to require the Secretary of the Department (s.5) to arrange for the making of investigations into various matters.
The Court accepts the submissions for the first respondent, that the Tribunal had no duty to investigate. The Court finds that the Tribunal did have investigations made, and did consider making further investigations, but decided, in exercising its discretion, not to initiate further investigations. See ante for the Court’s conclusions on s.427. Clearly, there was no failure by the Tribunal to consider making enquiries.

The applicant’s reply

The applicant alleges that integers of his claim were not considered (Transcript 18). That assertion has been rejected by the Court in its reasons above.
The applicant alleges that the Tribunal stated that it would not rely on the DEU minute only insofar as the letter of 16 October 1999 was concerned (see CB 163.10). The Court accepts that submission but notes that the Tribunal did not state at any point that it relied on the DEU minute in relation to its findings on the other letters. Further, the Tribunal made its own examination of the other letters (CB 163.10 and 233.10). In doing so the Tribunal made it clear that it was not relying on the DEU minute to establish the validity of the other letters. It concluded that it could infer from its considerations that one of the other documents is not genuine: It did not rely on the DEU minute in reaching that conclusion: It reached that conclusion as a result of its own considerations (CB 233.9-234.2) and the applicant’s solicitors understood the Tribunal to be saying that it would not rely on the DEU minute at all (CB 181.5). The Tribunal had grounds apart from the DEU minute to establish that the letter of 6 July was genuine as the applicant had stated in her written submissions at CB 131.1 that the letter is genuine and refers to the decision on 6 July 1999 to terminate her employment (CB 133.3).
The applicant submits that the Tribunal must have relied on the DEU minute to find that the letter of 16 October 1999 was not genuine. To accept that proposition, the Court would need to reject the statement by the Tribunal that it “will not rely on the opinion by the DEU in reaching that conclusion.” The Court is not prepared to do that. The Tribunal set out its reasons for finding that that letter was not genuine at CB 233.9. The Tribunal set out its reasons for inferring that at least one of the letters of 15 or 16 August 1999 is not genuine at CB 163.9.
The applicant then submitted that the letter at CB 92 is not a s.424A letter because it does not set out why the information is relevant, but retracted that submission at Transcript 22. That s.424A letter put to the applicant that the DEU investigation information is relevant because it indicated that Item 1 (the letter dated 16 July 1999) is genuine, and that Item 2 (the letter dated 16 October 1999) is fraudulent. At Transcript 22 the applicant asserts that what had to be put to the applicant in the 424A letter was the DEU minute, not the letter of 16 October 1999. The Court finds that the content of the DEU minute was put to the applicant in the s.424A letter on CB 92.
The applicant then asserts that the finding of the Tribunal that the applicant did not make certain claims should have been put to the Tribunal. The Court refers to its reasons above for rejecting this submission: the findings were not “information” within s.424A.
The applicant asserts that as the Tribunal only had “strong doubts” about the applicant’s credibility (Transcript 24) it should have made enquiries about the letterheads used by the hospital in 1999. The Court refers to its reasons for concluding that the Tribunal had good grounds not to make those enquiries. The Court rejects this claim.
The applicant then asserts that there would have been no difficulty in identifying the predecessor to PMOC Coyne. The Court refers to its reasons for rejecting the claim that s.477 was breached.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended application, and further amended application are dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 31 May 2007