SZKJI v Minister for Immigration
[2007] FMCA 1998
•26 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1998 |
| MIGRATION – Whether Tribunal required to grant request for a further hearing – adverse finding of credibility – new evidence not admissible – bias not shown. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 |
| Applicant: | SZKJI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 901 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 26 November 2007 |
| Date of last submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Ms M. Palmer of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 901 of 2007
| SZKJI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 29 January 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 7 April 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that he was an active member of the Communist Party in China, but lost confidence in the party after the 1989 student demonstrations. The applicant claimed that from November 2005 to January 2006, he organised local farmers in peaceful protests, and was later arrested, detained, and physically and mentally tortured by the Public Security Bureau. He claimed that he was released on bail and ordered to report regularly to the police station, which he has not done. He claimed that he will be subjected to persecution if he returns to China (Court Book “CB” 25-29).
The application was refused by a delegate of the first respondent on 1 July 2006 (CB 33) and by the Tribunal on review by decision signed on 29 January 2007 (CB 82).
The matter is now before this Court pursuant to an application for judicial review filed on 19 March 2007, and an amended application filed on 13 July 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal misunderstood the applicant’s claims;
·Whether the Tribunal was obliged to grant a request for a further hearing;
·Whether new evidence is admissible;
·Whether the Tribunal was biased;
·Whether the interpretation was so incompetent that the applicant was prevented from giving his evidence.
The application
In his application, the applicant set out three grounds as follows:
·There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
·There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars:
(1)My evidence or claims have completely misunderstood or distorted by the Tribunal; and thus, the tribunal’s decision is definitely incorrect or the Tribunal has definitely made a wrong finding.
(a)My fear of being subjected to persecution on return by the PRC authorities is mainly based on my experience since January 2005 – As a member of the CCP (Chinese Communist Party), I should not get involved in any protests against the PRC authorities, instead, I should be a tool of the Communist dictatorship. However, in my case, I have actively organised farmers to protest against the Chinese government in order to protect their farmland and strive for their basic human rights. As a result, I have been subjected to persecution; and eventually become the target of the PRC authorities.
(b)Therefore, it is definitely unfair that the Tribunal has given too much weight to my experience before January 2005 instead of the one since January 2005. It is definitely incorrect to refuse a fair consideration on my experience since January 2005 simply based on the Tribunal’s misunderstanding of or its incorrect assessment against my experience before January 2005.
(2)The Tribunal failed to comply with its obligation under s.425 of the Act.
(a)My case had initially been constituted to another Tribunal member; and that member conducted the hearing with me on 22 September 2006. After the hearing, the case was constituted to a new tribunal member who issued information to me for comment on 29 December 2006 (“s.424A letter”). I responded the s.424A letter on 15 January 2007; in which I have in fact provided further information and evidences in support of my claims. Particularly, I have requested a further Tribunal’s hearing with the presently constituted Tribunal.
(b)According to the Act, I have found that;-
[The applicant quotes s.425 of the Migration Act 1958]
(c)The law has never said that the Tribunal is only obligated to arrange a hearing for the application just for once; but the law does said that “The tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review unless the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it”;
(d)My case, it is the fact that the presently constituted Tribunal refused to consider “that it should decide the review in the applicant’s favour on the basis of the material before it” (the materials that I have mentioned are actually not only the ones that I have provided before my hearing with previously constituted Tribunal but also ones that I have provided to the presently constituted Tribunal).
Therefore, the presently constituted Tribunal must be obligated to arrange a hearing for me under s.425 of the Act.
(3)The Tribunal failed to comply with its obligation under s.424A(1) of the Act.
(a)To my understanding, the actual meaning of s.424A(1) of the Act is to create a fair opportunity for the applicant like me to give sufficient evidences or present sufficient arguments against the issue raised in relation to the review and for the Tribunal to consider the applicant’s evidences and arguments thoroughly and properly and fairly.
(b)Unexpectedly, in my case, the Tribunal failed to consider my evidences or arguments properly and fairly; and
(c)It is apparently that the Tribunal failed to comply with its obligation under s.424A(1) of the Act, honestly and faithfully.
The applicant filed an amended application on 13 July 2007 setting out the following grounds and particulars:
(1)The Tribunal ignored or failed to consider a claim that I made to it or the Tribunal ignored relevant material which was before it or the Tribunal misunderstood my claim or made a mistake in relation to an important finding of fact.
Particulars
(a)The central claim in my protection application was that I had actively organised farmers to protest against the Chinese government in order to protect their farmland and strive for their basic human rights though I used to be a member of the CCP (Chinese Communist Party). Under the Communist dictatorship in China, every CCP member must act as a tool of the dictatorship and carefully comply with every instruction of the PRC authorities. Therefore, my activities in organising farmers’ protest have made me inevitably become the target of the Chinese government; and thus I must have a real chance of being persecuted on my return.
(b)The tribunal, however, failed to consider my particular political background (used to be a CCP member); ignored or incorrectly assessed a documentary evidence submitted by me to it; misunderstood or misstated my particular role played in the farmers’ protest against the PRC authorities; and made a mistake in relation to my important claims or evidences.
(c)Furthermore, the Tribunal failed to consider, properly and fairly, my important evidences as follows:
My dismissal in 1989
I accept that the CCP was brutally oppressing dissents, particularly in its own ranks in 1989. However, firstly, 1989’s pro-democracy movement in Fujian, especially in the small town like Gangtou, had not been developed as large and influential as one in those big cities such as Beijing or Shanghai; and secondly, I was not personally involved in the movement but only expressing my adverse views during the political study after the end of the movement; and thirdly, I was not a senior official of the government in Gangtou Town, but only worked as a Liaison Person between Dongyuan Village and Gangtou Town (at the Tribunal’s hearing, the interpreter failed to interpret my position properly). Therefore, I was able to escape from being punished severally but just dismissed as a Liaison Person by the government in Gangtou Town and sent back to my home village.
During the period from January 1990 to December 2001, I was in difficulty in maintaining my basic livings solely relied on doing farm work at home mainly for the reasons that there was no sufficient farmland and as a farmer, I had to undertake various taxes and levies. So, I had to continually seek some odd jobs to maintain my normal livings. As a matter of fact, I was not the only farmer who could not survive if the living had only relied on the farming in the field; and actually, most of the farmers in my home village suffered from similar hardship even today.
Actually, my economic situation was changed after I was appointed as the general manager of Fuqing Huihong Printing Co. Ltd. In February 2002; and thus, I was able to earn my livings or get odd jobs at that time.
Nevertheless, it was definitely unfair that dismissing my position as a liaison person and sending me back home simply because of my expressing adverse views during political study after the end of 1989’s movement.
The reason why I mentioned my experience around 1989 in my application is that I intended to make the Department or the Tribunal to understand that I have gradually lost my confidence in the CCP since I was subjected to unfair treatment by the Chinese government in 1989.
My involvement in the 2005/2006 protests
I have formed the view that the Chinese government is “one of the most corruptive, the most autocratic, and the darkest governments in the world” is not “in February 2002” but since I was subjected to unfair treatment by the Chinese government in 1989.
I was, indeed, been ashamed to be a member of the CCP, but it would take great risk of being subject to severe punishment if I dared to “resign” from the party under the Communist dictatorship. Therefore, I had to hide my political opinions for my own survival; which indeed made me suffer from huge ideological pressure.
It is definitely unfair if my claims were alleged to have “the lack of details”. As a matter of fact, at the hearing before the previously constituted Tribunal, I really tried to provide my claims in details, but I was interrupted. For example, apart from 3 demonstrations that I had organised, respectively, on 3 November 2005; 24 November 2005; and 23 January 2006, I also intended to tell the previously constituted Tribunal at the hearing, that I had took some of the local farmers to visit the People’s Representative Congress in Fuqing City on 8 December 2005, requiring the People’s Representative Congress, which was organised by the so-called people’s representatives elected by our ordinary people, have an equal negotiation with representatives of the local farmers; and on 4 January 2006, I took some of local farmers to visit the politics & laws Commissions in Fuqing City, requiring the local government to make reasonable policies or regulations or laws and to well set up complete legal system to provide basic human rights of our ordinary people. Unfortunately, at the hearing, I was interrupted by the previously constituted Tribunal.
Furthermore, at the hearing before the previously constituted Tribunal, I intended to tell the Tribunal that I, organised the other peaceful protests by means of making donations to Mr. Zhang’s family or sending supporting letters to the government in Gangtou of Fuqing to support Mr. Zhang’s appeal for the injustice case. However, I did not have such an opportunity.
Frankly speaking, even today, I do not think that I have been given a good and fair chance to give my oral evidence and to present my argument at the hearing before the previously constituted Tribunal.
While I organised these protests, I did it very carefully and tried my best to avoid giving the government any excuse of persecuting us; and from the beginning to the end, I insisted on using a peaceful and reasonable methods; and especially, those protests were immediately stopped as long as the authority asked to disperse. However, eventually, I still could not escape from persecution by the PRC authorities.
My sister’s assistance in obtaining a visa
As I have submitted to the previously constituted Tribunal after the hearing, my sister was very much worried about my safety; and she found that I had gradually lost my confidence in the CCP since I have been unfairly treated by the Chinese government in 1989; and she also found that my dissident political opinions against the PRC authorities had become stronger and stronger even though I had hidden them at that time. She thought that it would be impossible for me to always keep silence according to my personalities and it would be inevitably for me, sooner or later, to get involved in protests against the Chinese government. Therefore, she believed that sooner or later I would be in troubles owing to my protests against the government. So, she started making arrangements for my trip to Australia from August 2002. However, my application for a visitor visa was previously returned by Australian Consulate General in Guangzhou for three times.
My sister, however, did not give up, because she, as I have claimed, very much concerned my safety owing to my political opinions against the PRC authorities. Therefore, my application for current visitor’s visa to Australia was dated late September 2005, which was about two months before my first protest had occurred. It was owing to my sister’s great help that I could leave the country shortly after I was released from the detention centre.
It si obviously that my sister had become concerned I would be arrested not from that she knew I was investigating the sale of the farming land; instead, it was started as earlier in 2002.
I did have a chance to travel to Malaysia in 2003; but, at that time, I was not in the situation that I had to risk rest of my life in an alien country where I did not have any relatives or friends.
The issue is that my situation has completely been changed since I was in troubles with the PRC authorities. I was arrested by the PSB and detained for about 2 weeks from 3 February to 17 February 2006; and I was denounced to organise anti-government protests; and I was physically and mentally mistreated and tortured in the detention centre; and I have permanently been dismissed by the CPP since then. Particularly, even if I was released on bail on 17 February 2006, I was required to report to the local police station once a week; and I have been warned not to have any anti-government movement again. In such a situation, I had to leave my country.
Frankly speaking, while I discussed my case at the hearing before the previously constituted Tribunal, I strongly felt that the previously constituted Tribunal had give a bias to me, which, to my understanding, was for reasons that I had made several attempts to obtain a visa to travel to Australia and that I had had a chance to go to Malaysia.
My departure from the PRC
The key issue is that I was not put on the “wanted list” before I departed from China, but required to report to the local police station once a week; and warned not to have any anti-government movement again. In such a situation, I was able to leave the country.
However, since I departed from China, the situation has been changed, because I was found not to report to the police station on time (one of condition for releasing me on bail was to report to the police station once a week). As a result, my wife has been questioned by the policemen many times; and I have been regarded as a political criminal at large.
At the hearing before the previously constituted Tribunal, the interpreter or the Presiding Member has obviously not properly interpreted or misunderstood my claims. I have never said my “case was not serious enough to be criminal that they want’. What I said was that I had not put on “wanted list” before my departure.
So, my situation has been completely changed since my departure from China, and that is why I have to seek a protection application, because I do indeed have a real chance of being persecuted on my return.
My political and other convictions
Firstly, it might be a mistake of the interpreter at the hearing before the previously constituted Tribunal or the Presiding Member understood my claims. My wife was a housewife before my departure from China. However, my wife was questioned by the police for many times, and thus she was under huge pressure. Eventually, she really could not stay at home, because the police continually went there for making troubles. So, she had to go to a place where the police did not know. In that place, she looked after children for others.
Secondly, I understand that the previously constituted Tribunal, given I have a sister (but not a brother) in Australia and had unsuccessfully sought to travel to Australia on three previous occasions and had in fact one chance to travel to one other country since 2002 (but I never go), was concerned my real reason for travelling to Australia was to effort a migration outcome rather than seek refugee protection. However, based on all of my claims provided to the Department and to the previously and currently constituted Tribunal, my fear of persecution on return is true and must be well-founded.
Thirdly, it may be true that document fraud is not uncommon in the PRC, but it is definitely true that I have been expelled from the CCP due to my political opinions ad activities. In order to support my claims, I hereby solemnly authorise the Tribunal or the Department to take any steps to verify authenticity of the document and I have submitted to the Tribunal.
Given that my case is really complicated and particularly I do not think that I have had a good and fair chance to give my oral evidence and to present my argument at the hearing before the previously constituted Tribunal and my case has been transferred to currently constituted Tribunal, I do indeed hope that I could be arranged another hearing so that I could explain my claims clearly and completely; and especially, I could have a chance to clarify those issues in relation to my application.
(2)[The applicant repeats particular 2 of the original application]
(3)[The applicant repeats particular 3 of the original application]
Findings of the Court in relation to the grounds in the application
Particular 1
The Tribunal found at CB 87.5 that:
given I am sufficiently satisfied he is not a witness of truth, I find that none of the applicant’s material claims to invoke protection obligations in Australia are true.
The Tribunal set out its reasons for not being satisfied of the truth of the applicant’s claims (CB 87.5-91.9). In W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court does not find that the Tribunal has failed to use or has palpably misused its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.
The Court agrees with the following submissions in another matter:
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The adverse finding on credibility is not open to challenge and must stand. As a result of the adverse finding of credibility, the Tribunal rejected the applicant’s claims; it was free to do that. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The grounds allege an error of law and a denial of natural justice. Particular 1(a) alleges that the applicant’s claims have been misunderstood or distorted, and sets out statements of fact. Insofar as they were before the Tribunal, the Tribunal rejected the claims. Insofar as they were not before the Tribunal, they cannot be admitted into evidence by the Court. Particular 1(a) is rejected.
Particular 1(b) complains about the weight given to evidence. That is a matter for the Tribunal: Lee (ante). Particular 1(b) is rejected.
Particular 2
Particular 2 alleges a breach of s.425 of the Migration Act 1958 (Cth) (“the Act”) and complains that the second Tribunal was obliged to grant the applicant a new hearing. Nothing in the Act requires the Tribunal to grant an additional hearing: Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [37]-[43]. Particular 2 is rejected.
Particular 3
Particular 3 alleges a failure to comply with s.424A of the Act, stating that the Tribunal did not consider the applicant’s case fairly and properly. This ground amounts to a request to review the merits, which is not open. The Tribunal was entitled to reject the evidence as it considered appropriate: Lee (ante). A breach of s.424A has not been established.
The first s.424A letter (CB 56) set out the applciant’s failure to disclose unsuccessful attempts between 2002 and 2005 to obtain a visa to come to Australia. The Tribunal explained why the information was relevant. As submitted by the first respondent, it is clear that the applicant understood the relevance of that information from his statutory declaration of 4 December 2006 (CB 59.1).
A second s.424A letter was sent to the applicant on 29 December 2006 (CB 61), which attached a draft of the decision of the Tribunal for comment. As stated for the first respondent:
That second part [of the decision] shows no more than the reasoning processes of the Tribunal as well as some information regarding evidence of corruption in China. The reasoning processes of the Tribunal are not “information” within the meaning of s.424A(1): SZBYR v Minister for Immigraton and Citizenship (2007) 81 ALJR 1190 at 1196, [18]. The information about corruption in China was not specifically about the applicant or another person, but was just about a class of persons of which the applicant or another person was a member and so fell within the exception found in s.424A(3)(a).
The Tribunal affirmed the decision of the delegate because it did not accept the evidence given by the applicant for the purpose of the application. That evidence was covered by the exception in s.424A(3)(b). A breach of s.424A has not been established. Particular 3 is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one
Ground one alleges a failure to consider a claim, and that the Tribunal ignored relevant information or misunderstood material before it. Particular 1(a) asserts matters of fact that the Tribunal rejected. It was free to do that: Lee (ante). Particular (a) is rejected.
Particular 1(b) alleges that the Tribunal failed to consider his political background of having been a CCP member, and ignored or misunderstood evidence about his role in the farmers’ protests against the PRC authorities, and made a mistake in relation to his claims and evidence. The Tribunal did consider his political background (CB 88.3). The Tribunal addressed the applicant’s political convictions at CB 91.1. As to the allegation that the Tribunal misunderstood or ignored evidence about his role in the farmers’ protests, the documentary evidence is at CB 52. The Tribunal dealt with this document in the draft decision sent to the applicant for comment in the 424A letter (CB 67.7). In its decision the Tribunal rejected the document on the basis that fraud is not uncommon in China and because of its findings as to the claims by the applicant. It was open to the Tribunal to reject the document: Lee (ante).
It is then alleged that the Tribunal misunderstood the applicant’s role in the farmers’ protest. The applicant provided details of the role he played in his statutory declaration in support of his application for a visa (quoted at CB 85.7, 89.2). At the hearing before the Tribunal the applicant said that by “many times” he meant “only three demonstrations” (CB 89.3). That applicant has referred in today to three demonstrations. The Tribunal set out its reasons for finding that it was not satisfied that the applicant “was involved either as he claimed, or at all, in the abovementioned protests” (CB 89.4).
In his statutory declaration of 15 January 2007 (CB 70, para.10) the applicant provided details of his activities, which he said he was prevented from presenting to the first Tribunal because he was interrupted. The Tribunal did not ignore the evidence (refer CB 85.6, 89.2, 89.4) and it is not shown that it misunderstood it. The Tribunal analysed it and rejected it as it was entitled to do: Lee (ante). Particular (b) is rejected.
Particular 1(c) alleges a failure to consider the evidence. The applicant then sets out six pages of factual material. Insofar as it repeats factual material put to the Tribunal, the applicant does not particularise which parts of the evidence was ignored. The complaint is therefore meaningless and is dismissed. Insofar as the facts contain additional material that was not put before the Tribunal, that material cannot be accepted by the Court, the function of which is to determine whether or not the Tribunal made an error of law on the material before it. Particular (c) is rejected.
Insofar as the applicant alleges that he was prevented from putting material before the Tribunal as first constituted because he was interrupted, a transcript of that hearing has not been provided and the allegation is not established. In any event, the applicant was able to put information before the Tribunal as reconstituted and did so in a statutory declaration (CB 70, para.10). That statutory declaration was considered by the Tribunal at CB 86.7.
The applicant requested a further hearing and the reconstituted Tribunal stated at CB 86.9:
This case had initially been constituted to another Tribunal member. That member conducted the hearing with the applicant on 22 September 2006. The current Tribunal member has decided not to conduct a further hearing. In his statutory declaration of 15 January 2007, the applicant requested a further hearing. However, while the present Tribunal may have conducted the Tribunal hearing differently to the previous Tribunal member, after having carefully listened to same, I was not satisfied the applicant had been denied a real opportunity to appear and give evidence and submissions in support of his case. Further, the present Tribunal also provided the applicant with an opportunity to comment in writing about its concerns by way of the abovementioned s.424A letter of 29 December 2006.
The Court is not satisfied that the applicant has been prevented from putting evidence or submissions to the Tribunal. Insofar as the applicant alleges bias, no particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507.
The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] as follows:
...it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59]. In Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], the High Court stated that (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 per Gleeson CJ, McHugh, Gummow and Hayne JJ):
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
There is nothing to show that a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.
Insofar as the applicant complains about the interpreter at the hearing, the question is whether the interpretation “was so incompetent that he was prevented from giving his evidence”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38]. As stated in Perera at [45], the “departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision”. A transcript of the hearing has not been provided to the Court. There is nothing to establish that the level of interpretation prevented the applicant from giving his evidence.
Ground 1 is dismissed.
Ground two
Ground 2 repeats particular 2 of the application and is rejected for the reasons set out thereunder.
Ground three
Ground 3 repeats particular 3 of the application and is rejected for the grounds set out thereunder.
In submissions today the applicant made reference to an alleged breach of s.424. That may have been a reference to s.424A of which no breach has been established. Section 424 provides that the Tribunal may get any information that it considers relevant when conducting a review. A breach of that section has not been established.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that 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 and amended application are dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 29 November 2007
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