SZKLK v Minister for Immigration - [2008] FMCA 92

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLK v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 92

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – individual findings of fact reached by the Tribunal were rationally open to it and do not suggest a closed mind – bias on the part of the Tribunal is not demonstrated by an accumulation of discrete findings negative to the applicant if those findings were open to the Tribunal – the fact that another Tribunal might have found differently does not prove that this Tribunal was biased – Court cannot revisit the Tribunal’s findings of fact and assessment of the merits of the application.

Johnson v Johnson (2000) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
NADH (2001) v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

Applicant:

SZKLK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1096 of 2007

Judgment of:

Cameron FM

Hearing date:

24 August 2007

Date of Last Submission:

24 August 2007

Delivered at:

Sydney

Delivered on:

31 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr. I. Archibald

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondents:

Mr. S. Free

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1096 of 2007

SZKLK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application dated 16 August 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 15 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 6 November 2006 refusing the applicant’s application for a protection visa.

Background facts

The Tribunal described the applicant as follows:
·    He was male, born in China and had Chinese citizenship.
·    He was born on 7 April 1967 and so was aged 39 years at the time of application.
·    He required a Mandarin interpreter. He could speak, read and write Mandarin.
·    His ethnic group was “Chinese”.
·    His religion was “Falungong”.
·    He was married in China on 20 December 1990.
·    His occupation before he left China was “unskilled worker”. He was not currently employed. (Court Book (“CB”) page 100).
The applicant claims to fear persecution in China because he is a Falun Gong practitioner.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 16 of the Tribunal’s decision (CB 100 – 112). The Tribunal quoted from two statements attached to the applicant’s protection visa application form. In the first the applicant claimed that:
a)he began to practise and study Falun Gong in March 1999;
b)when the public security body in China launched a campaign to eradicate the practice of Falun Gong in July 1999, the applicant began to practise at home secretly;
c)in May 2001, the local public security bureau found out the applicant was practising Falun Gong secretly and they arrested him and detained him overnight;
d)the applicant was released the day after when he paid a fine of 500 yuan and his family and friends asked around for favours;
e)in March 2003 the applicant was caught practising Falun Gong at home again and the local public security bureau forced him to undergo one year of labour reform;
f)the applicant was released in April 2004. Upon returning home, the local security people and the neighbourhood committee told the applicant to write a weekly report about his life and activities; and
g)the public security officers went to the applicant’s home a number of times and told his family to take him to a mental hospital.
In a second statement attached to his protection visa application form, the applicant claimed that:
a)he and three other Falun Gong practitioners were arrested by police in May 2002;
b)they were taken to the Kaifeng city industrial public security bureau office and detained;
c)the applicant was interrogated by a police officer (“Li”) who secured the applicant to a metal pipe and asked him who told him and his friends to practise Falun Gong;
d)when the applicant replied that they practised Falun Gong only to exercise their bodies, Li roared, kicked the applicant in the stomach and slapped his face 20 times. The applicant bled from his nose and month. A second police officer threw a 3-leg iron bar stool at the applicant’s head; and
e)then other police officers arrived. After an exchange these policemen unlocked the applicant’s handcuffs and took him to a hospital. The wound in the applicant’s left leg was 4cm in length and was deep enough to expose the bone. The applicant received 8 stitches for a large wound and 3 stitches for a small wound.
Prior to the Tribunal hearing, the applicant provided to the Tribunal:
a)
a translation of a Chinese document entitled “Labour Reform Relief Assessment Form” by the “Unit: Education Team” dated

4 March 2004
; and
b)a translation of a Chinese document entitled “Kaifeng City No. 2 People’s Hospital Diagnosis” dated 13 May 2002, concerning an examination of the applicant on 13 May 2002 saying that he had a head injury and required 8 stitches.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found the applicant to have a superficial and scant knowledge of Falun Gong. The applicant knew a few basic facts about the movement such as when the Chinese authorities started to crack down on Falun Gong, the name of the Falun Gong founder and text, the names of the exercises and the concept of “truthfulness, benevolence, forbearance” but he had no apparent understanding of the philosophy of Falun Gong and no apparent knowledge or understanding of how practising Falun Gong achieved the benefits and outcomes claimed by practitioners;
b)the applicant indicated that he practised the precept of “truthfulness, benevolence and forbearance” but showed no apparent understanding of this key concept beyond an explanation that he practised this precept by performing the exercises;
c)the applicant was unable to articulate how Falun Gong exercises and movements differed from any other exercise, or what movements were unique to Falun Gong;
d)the applicant’s explanation that he was banned from practising Falun Gong and only resumed full practice when he arrived in Australia was inconsistent with his account of his experiences in China where he claimed to have always continued practising, even when he was in the labour camp;
e)the Tribunal did not accept that the applicant was interested in, and had practised, Falun Gong since March 1999, noting that the applicant’s discussion of Falun Gong was trite and shallow;
f)the Tribunal stated that when in Australia, the applicant had given “seemingly low priority” to Falun Gong;
g)the applicant said that he had abandoned public practice of Falun Gong because his photograph was taken by someone whom he was told was a spy. The Tribunal said that the applicant had initially said that he had been told this by a passer-by and later said that someone at work had told him to stop attending. The Tribunal considered that this change of evidence raised concerns that the applicant was fabricating claims as he was giving evidence at the hearing;
h)the applicant’s evidence concerning his observance of or participation in a “singing performance” about withdrawing from the Communist Party evolved in response to the Tribunal’s questions;
i)the Tribunal did not accept that the applicant has had any association with the Falun Gong movement in Australia, or has practised Falun Gong in Australia, noting that the applicant changed his evidence, initially claiming no involvement with other Falun practitioners in Australia until prompted by the Tribunal and the applicant’s representative, at which point he admitted to knowing a Falun Gong practitioner in Australia;
j)the Tribunal found that the documents provided to it by the applicant were not genuine and so gave no weight to them, noting that:
i)country information suggested a high level of document fraud in China;
ii)the Tribunal already had concerns about the applicant’s credibility based on its findings on his other claims;
iii)the document entitled “Labour Reform Relief Assessment Form” contained inconsistent dates which suggested that the information was not accurate;
iv)the document entitled “Kaifeng City No 2 People’s Hospital Diagnosis” did not outline how the applicant’s “head injury” was sustained and did not verify the applicant’s claim to being injured in the way he described;
v)
the applicant claimed to have had the documents by

6 October 2006
but, although he apparently wanted them to support his application, he did not provide them to the Department before the delegate made her decision on

6 November 2006
;
vi)the applicant did not have the documents in October 2006 and his claim to have had them was concocted;
k)the hospital document of May 2002 did not show how his injury came about;
l)the Tribunal was not satisfied that the applicant was a credible witness as it found that he fabricated claims and details at the Tribunal hearing, noting that:
i)the applicant gave some inconsistent evidence about the May 2002 incident such as the name of the policeman who interrogated him and whether or not the applicant knew what happened to the other three Falun Gong practitioners who were arrested with him;
ii)the applicant gave inconsistent evidence about the March 2003 incident, such as when he was released from the labour camp;
iii)the Tribunal concluded that the birth of the applicant’s elder daughter on 4 September 2004, of whom he was adamant he was the natural father, showed that the applicant was not in a labour camp at the time he claims;
m)the Tribunal found that the long delay between the end of the claimed labour reform in March 2004 and his decision to leave China in June 2006 was inconsistent with his claimed fear;
n)the Tribunal had concerns that the applicant was fabricating claims and details as he gave evidence at the hearing, noting that the applicant gave inconsistent evidence about how he obtained his passport: in his application he said he waited four months to get a passport and that his friend had helped him to get it, at the hearing the applicant said that his wife organised the passport through a relative and in a statement after the hearing the applicant said his wife and her connections had made the arrangements. This concern was reinforced by the difference between claims made in his statements and the actual details of the passport;
o)the applicant’s passport was issued on 21 January 2005, which suggested to the Tribunal that the applicant was not of interest to the authorities at that time;
p)the Tribunal found that the issue date of the passport was inconsistent with the applicant’s claims at the hearing that arrangements for a passport were made in 2006, noting that the passport was issued some 17 months before the applicant claimed to have decided to leave China;
q)the Tribunal did not accept the applicant’s claims about the urgency of his departure from China, noting the long delay between when his passport was issued in January 2005 and his date of departure in August 2006;
r)in light of the Tribunal’s findings about the applicant’s credibility, it did not accept that the applicant needed to pay a bribe or to have a “connection” in order to get his passport; and
s)the Tribunal found that the applicant was of no interest to the Chinese authorities, noting that the applicant claimed that he left China with no difficulties and travelled on his own genuine passport.

Proceedings in this Court

In the amended application the applicant alleges that the Tribunal fell into jurisdictional error by reason of the appearance of bias on the part of the Tribunal. The applicant sets out numerous particulars of this allegation which can be grouped into the following categories:
a)the Tribunal’s treatment of the applicant’s evidence concerning his knowledge of Falun Gong;
b)the Tribunal’s treatment of the applicant’s evidence concerning his Falun Gong observances in Australia;
c)the Tribunal’s treatment of the documents submitted by the applicant in corroboration of his claims;
d)the Tribunal’s treatment of the applicant’s evidence concerning the name of the policeman who arrested and assaulted him in China;
e)the Tribunal’s treatment of the applicant’s knowledge of the fate of the three other people arrested with him in May 2002;
f)the Tribunal’s treatment of the evidence adduced by the applicant in relation to his detention in a labour camp; and
g)the Tribunal’s treatment of the arrangements made for the applicant’s departure from China.
Before dealing with the grounds advanced by the applicant, the test for apprehended bias should be considered. The relevant test was described in Johnson v Johnson (2000) 201 CLR 488 in the following terms:
It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492 [11])
However, the Tribunal’s processes are not curial proceedings and in the circumstances of an administrate tribunal, in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425, Gleeson CJ, Gaudron and Gummow JJ said:
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. (at 434 [28])

The Tribunal’s treatment of the applicant’s evidence concerning his knowledge of Falun Gong

In the amended application the applicant set out the following findings of fact to which he alleges a fair-minded and informed person might reasonably have regard in forming an apprehension that the decision-maker might not have brought an impartial mind to bear on the decision:
1. the finding that the applicant had learned a few basic facts about the movement (that being Falun Gong),
2. the finding that the applicant had no apparent knowledge or understanding of the philosophy of Falun Gong,
3. the finding that the applicant had no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners,
4.the applicant had no apparent understanding of the key concept of “truthfulness, benevolence and forbearance”,
5. the finding that the applicant had ample opportunity at the hearing to demonstrate his knowledge and/or understanding of Falun Gong,
6. The applicant’s discussion of Falun Gong was trite and shallow. (emphasis in original)
Emphasis was placed by the applicant on the Tribunal’s statement in its “Findings and Reasons” that the applicant had had “no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners” (CB 113). The applicant submitted that the applicant could not be expected to know the answer to that question, it being likely to be beyond the knowledge of most, perhaps all, people. He submitted that it was unreasonable to expect the applicant to be able to provide a worthwhile answer to this question and it was part of a finding which demonstrated that the Tribunal’s mind was not open to persuasion.
The first respondent submitted that it was proper for the Tribunal to test and assess the evidence given by the applicant and that the relevant questioning of the applicant by the Tribunal reproduced at p.9 of the transcript annexed to the affidavit of Sue Archer sworn 1 May 2007, was no more than a relevant part of the Tribunal’s inquiry into how much the applicant knew of Falun Gong. The first respondent submitted that it was not appropriate to dissect every question asked by the Tribunal and that, in any event, it was for the Tribunal to assess the significance of the evidence given by the applicant. The first respondent submitted that the questions posed by the Tribunal did not lead to an inference that its mind was not open to persuasion.
In relation to the first asserted ground of review, the first respondent submitted that even if it were true that the question asked by the Tribunal was an imponderable one and one which no-one could really answer, the conclusions which the Tribunal ultimately drew concerned a factual matter which was for it to assess. The respondent submitted that it did not support any rational inference that the Tribunal was not open to persuasion on this topic or the broader issue of the applicant’s credibility.
The conclusions drawn by the Tribunal were open to it on the evidence. The Tribunal’s questioning of the applicant concerning how Falun Gong provided the benefits he claimed for it was reasonable. However, more significantly, what this part of the applicant’s claim invites the Court to do is to review the answers given by the applicant to the Tribunal’s questions and review the Tribunal’s assessment of those answers in light of the allegation of bias. Whether the Tribunal reached a correct conclusion in respect of those answers is not a matter into which this Court can inquire or express a view other than to say that the Tribunal’s findings were rationally open to it and do not suggest a mind not open to persuasion.

The Tribunal’s treatment of the applicant’s evidence concerning his Falun Gong observances in Australia

In respect of this part of the claim, the allegation that the Tribunal might reasonably be apprehended to have been biased was based on the following particulars:
7. the finding that the applicant’s account shows that he had given seemingly low priority to Falun Gong in Australia,
8. the finding that the applicant had changed his evidence in relation to why he had stopped exercising in a park,
9. the finding that the applicant’s claim to have participated rather than just observed a singing performance in support of withdrawing from the Communist Party had evolved in response to the Tribunal’s questions,
10. the finding that there was a change in evidence in relation to the applicant’s contact with Falun Gong practitioners in Australia. (emphasis in original)

In its decision the Tribunal said:
At the hearing he stated he had performed exercises a few times at a city park which he did not name, and exercises in his room every day. He stated he stopped exercising in the park because his photo was taken and a passer-by said the photographer was a spy, and then changed his evidence to claim someone at his work told him to stop attending there. (CB 114)
The applicant compared the Tribunal’s findings to the evidence which had been given at its hearing:
TRIBUNAL MEMBER: Now, where do you practice [sic] Falun Gong and what do you practice [sic]?
APPLICANT: Do the five exercises.
TRIBUNAL MEMBER: Where do you do this?
APPLICANT: Sometimes in a park in the city, I have done exercises there.
TRIBUNAL MEMBER: Is that near the train station?
APPLICANT: No, in the park I think it is some water feature there.
TRIBUNAL MEMBER: And you don’t know what the park is called?
APPLICANT: No.
TRIBUNAL MEMBER: What is the park near?
APPLICANT: Across from Chinatown.
TRIBUNAL MEMBER: Have you practiced [sic] anywhere else?
APPLICANT: I do exercises at my own room every day.
TRIBUNAL MEMBER: Do you do them anywhere else?
APPLICANT: No.
TRIBUNAL MEMBER: How often do you do the exercises in that park?
APPLICANT: I went a few times then there was someone on the side taking photos. They said they’re spies so I wouldn’t dare to go any more.
TRIBUNAL MEMBER: I did laugh, it’s not actually amusing. How did they say to you that they were a spy?
APPLICANT: Some passer-by said that. And also when I telephoned home my wife said the PSB is still going to my home to investigate.
TRIBUNAL MEMBER: So your evidence was, is it, that your photo was taken by someone in that park and a passer-by said that is a spy?
APPLICANT: No, I was doing exercise there then I saw someone taking photo towards the practitioners.
TRIBUNAL MEMBER: And how did you come to the conclusion that this was a spy?
APPLICANT: Then at work I told someone what happened, they said stop going.
The applicant submitted that the Tribunal had said that there had been a change of evidence when, in fact, there was not and that the evidence quoted above, when read as a whole, was not internally inconsistent. The applicant submitted that when the applicant said “they said they’re spies”, “they said stop going” it was consistent with more than one person saying to the applicant during his practices that the observers were spies and then somebody else at work saying not to go.
It was submitted that while, of itself, this did not support a finding of apprehended bias it was one part of a cumulative claim.
The first respondent submitted that it was for the Tribunal to assess the impact of the evidence given by the applicant. Moreover, the first respondent submitted that the applicant had squarely said that it had been a passer-by who had identified the photographer as a spy but, when asked to confirm this evidence, said “no”. The first respondent submitted that another Tribunal might have reached the conclusion pressed by the applicant – that the different versions can be explained by the applicant being confused and the passage in question being merely a clarification – but that was of no significance because the Tribunal in question did not. The Tribunal in question found that the applicant gave different answers to the same question.
For the reasons given above at [15] the applicant is really inviting the Court to review the Tribunal’s fact finding which it cannot do. The Tribunal’s findings were rationally open to it and do not suggest a closed mind.

The Tribunal’s treatment of the documents submitted by the applicant in corroboration of his claims

In respect of this part of the claim, the allegation that the Tribunal might reasonably be apprehended to have been biased was based on the following particulars:
11. The finding that the information contained in the purportedly corroborative documents of the applicants [sic] claim as to having been sent to labour reform for detention for one year and suffered injury whilst detained are not genuine and that the Tribunal gives no weight to the documents.
12. The finding that the applicants [sic] failure to advise the Department of the purportedly corroborative documents and the conclusion that the applicant did not hold the documents in October 2006 and that he concocted this claim as to having held the documents at that time.
13. The findings in relation to the document from the Kaifeng City No. 2 People’s Hospital to the effect that as the document does not show how the injury came about it went against the claim that he was injured in the way he described. (emphasis in original)
The applicant referred to the Tribunal’s acceptance of independent country information which said that documents may be bought or forged in China. In his written submissions the applicant said this:
Based on the Tribunal’s consultation of sources which show that there is a high level of document fraud in China: any official document can be either bought or forged in China, and irregular or improper issue of documentation is widespread the information contained in the purportedly corroborative documents is not genuine and the Tribunal gives no weight to the documents.
The evidence was that the applicant had received the purportedly corroborative documents towards the end of October 2006 (CB 87). The delegate had made the adverse protection visa decision on 6 November 2006. The Tribunal found that the applicants [sic] failure to advise the Department about the documents, does not support his claim that he had received the documents in late October 2006. Accordingly the Tribunal concluded that the applicant did not hold the documents in October 2006 and that he concocted this claim. (emphasis in original)
The applicant commented on what he said was inconsistent reasoning by the Tribunal in that the Tribunal accepted that false documents could be obtained from China, as it concluded was the case with the documents associated with the applicant’s claim to have been detained in the labour reform camp, and yet it accepted that the passport obtained by the applicant was genuine notwithstanding the circumstances in which it had been obtained. The applicant submitted that the passport the applicant had obtained was false, not in the sense that it was not a genuine document, but in the sense that it was not properly issued to the applicant. He sought to draw an analogy between a genuine document which had been, allegedly, improperly obtained and documents which were not genuine in the first place. The applicant submitted that in rejecting the potential falsity of the passport while accepting the falsity of the labour camp and hospital documents, the Tribunal demonstrated that its approach to the use of independent country information was capricious and arbitrary.
The first respondent argued that the applicant had submitted two sorts of documents as corroborative of his claims. The first sort was documents associated with his alleged detention in a labour reform camp and the second sort was a document from the Kaifeng City No.2 People’s Hospital dated 13 May 2002 concerning an examination of the applicant that day. The Tribunal found that the first sort of document was not genuine. As to the second sort, this was found simply to not corroborate what was alleged by the applicant because it did not contain corroborative information beyond the fact that he had been injured. That is to say, the document was silent on the cause of the injuries sustained by the applicant. The first respondent submitted that a consideration of the labour reform camp documents found at CB 116 demonstrates that the Tribunal gave appropriate consideration to them.
The applicant submitted that the Tribunal seized on the perceived delay in the applicant bringing the documents he had received from China to the Department’s attention and came to an unfair conclusion, ignoring the fact that the applicant would have had no idea when the delegate was due to make her decision.
In relation to the applicant not giving the documents from China to the delegate prior to her decision, the first respondent submitted that the Tribunal considered what the applicant said as to when the documents had been received, recognised the explanation given by him concerning the delay but concluded that this did not explain why he had not told the Department, at least at that stage, that he had received untranslated documents.
The first respondent submitted that while another Tribunal might have made a different finding on the facts in question, the conclusion at which this Tribunal arrived in relation to the labour reform camp documents did not demonstrate a closed mind. As to the hospital document, the Tribunal’s assessment of it merely reflected what the document did and did not contain.
Again, the applicant invites the Court to review the Tribunal’s fact finding which it cannot do. The Tribunal’s findings were open to it and do not suggest a mind closed to persuasion. Further, the allegation of bias derives no support from what the applicant alleges is different treatment given by the Tribunal to the passport and to the documents discussed in this aspect of the review. The Tribunal’s findings on the applicant’s version of events concerning how his passport was obtained turned on the variations in the history he gave. The genuineness or falsity of the passport document itself was not a subject of critical scrutiny and to suggest that a different and inconsistent standard was applied to it, thereby evidencing bias, is to overstate the role of the passport document in the Tribunal’s reasoning.

The Tribunal’s treatment of the applicant’s evidence concerning the name of the policeman who arrested and assaulted him in China

The allegation that the Tribunal might reasonably be perceived to have been biased was also based on the following particular:
14.The findings in relation to the applicant’s differing statements as to his recollection of one of the names of the policeman who had struck him in May 2002.
In his statement supporting his application for a protection visa found at CB 31 the applicant described his interrogator as “Li Hong Jun” whereas in his evidence at the Tribunal he named the person as “Sun Hong Jun”. The applicant complained that the weight the Tribunal accorded to this discrepancy could sustain a conclusion of apprehended bias. The applicant's counsel submitted that although the Tribunal could find that there was a discrepancy between the two names, the fact that the Tribunal relied on a detail of that nature was something which could be looked at to see whether more significance than was warranted had been placed upon it. It was submitted that this was something which could be taken into account as a potential indicium of apprehended bias.
The first respondent submitted that this was a matter for the Tribunal to weigh and all it did was refer to the evidence, the applicant’s explanation and reach a conclusion on the material before it. The first respondent submitted that an observer assessing the process in question would not perceive the possibility that the Tribunal had a closed mind.
Here too, the applicant invites the Court to review the Tribunal’s fact finding. The Tribunal’s findings were open to it and its approach to the matters in question does not satisfy the test of apprehended bias articulated in Johnson v Johnson or Ex parte H.

The Tribunal’s treatment of the applicant’s knowledge of the fate of the three other people arrested with him in May 2002

The allegation that the Tribunal might reasonably be apprehended to have been biased was also based on the following particular:
15. The findings that the explanation by the applicant as to what happened to the persons who were detained and assaulted with him in May 2002 changed during the hearing thus suggesting that the applicant was fabricating claims and details as he gave evidence at the hearing. (emphasis in original)
The applicant submitted that if the quoted questions and answers were considered properly it could be seen that his evidence did not change. He submitted that the conclusion reached by the Tribunal indicated a predisposition against him.
The applicant referred to the evidence at the Tribunal found at pp.17 – 18 of the transcript:
TRIBUNAL MEMBER: Do you know what happened to the other three people that you were exercising with?
APPLICANT: I don’t know.
TRIBUNAL MEMBER: Did you not ask them afterwards what happened to them? Did you not ask the other people that you were exercising with what happened to them?
APPLICANT: After we did see each other and I did ask them so in fact we were all beaten.
TRIBUNAL MEMBER: So the answer is you did know what happened to them?
APPLICANT: In fact at the local police station we can hear they were bleeding.
TRIBUNAL MEMBER: And what else happened to them?
APPLICANT: One of them did not … I don’t know where he is now.
TRIBUNAL MEMBER: At first you said you didn’t know what happened to the three other people. Then you said that you did ask them afterwards and they said they were beaten. So your evidence has changed.
APPLICANT: No it’s not changed. I could hear the next door. They closed the door but I could hear some people yelling.
TRIBUNAL MEMBER: But just to confirm, did you speak to those three other people after you had been discharged from the hospital?
APPLICANT: No, they were all scared.
TRIBUNAL MEMBER: So is your evidence that after you were released from hospital you didn’t speak to any of the other three people, is that your evidence?
APPLICANT: No.
TRIBUNAL MEMBER: No you didn’t speak to them?
APPLICANT: When I was lying at home I wasn’t thinking of it but later as we were all in Kung Feng we did see one another.
TRIBUNAL MEMBER: I didn’t understand that. I asked you whether you spoke to any of the three people, whether that was your evidence and you said no. I took you to mean that you were saying that no you didn’t speak to any of the three people afterwards, is that right?
APPLICANT: We did talk. I was lying at home for about over a month, so I did see them once, and then one of the them said, another person called Liu Jian Jun, they can’t find him, doesn’t know where has gone.
TRIBUNAL MEMBER: So was he one of the people you had been exercising with?
APPLICANT: Yes.
The applicant submitted that the question “do you know what happened to the other three people that you were exercising with?” was so open-ended that its answer should be given no weight or significance as the basis for a comparison with other answers. The applicant submitted that whereas the applicant’s evidence subsequent to the answers given in response to the open-ended question was merely clarification given in response to more specific questions, the Tribunal characterised the applicant’s evidence as having changed.
The applicant submitted that the Tribunal was acting in a way which suggested the possibility of a closed mind when the following part of the above quoted transcript is also considered:
APPLICANT: When I was lying at home I wasn’t thinking of it but later as we were all in Kung Feng we did see one another.
TRIBUNAL MEMBER: I didn’t understand that. I asked you whether you spoke to any of the three people, whether that was your evidence and you said no. I took you to mean that you were saying that no you didn’t speak to any of the three people afterwards, is that right?
It was submitted that the Tribunal was taking its own meaning as to what the applicant was saying in circumstances where the applicant had given a brief answer to a broad question. It was submitted that the applicant had explained a complex situation, from the time of the events at the police station through to his recuperation, in a normal manner of clarification.
The applicant referred to the following passage of the Tribunal’s decision as indicating that the Tribunal had a closed mind:
The applicant’s evidence concerning the other 3 Falun Gong practitioners changed during the hearing. At first he stated he did not know what happened to the other 3 Falun Gong practitioners; then that he did see them afterwards and they had been beaten; and then that he had heard them being beaten and yelling; then that he had not spoken to them as they were scared; and then that he did speak to them as he was at home injured for over a month. The applicant’s changing evidence, together with other instances when he changed his evidence during the hearing, suggested that the applicant was fabricating claims and details as he gave evidence at the hearing. (CB 117)
The applicant submitted that a fair-minded person would see in the quoted passages the possibility of a closed mind.
The first respondent submitted that the applicant’s criticism of the question quoted above was an unfair one. The first respondent said that the question under scrutiny was one which directed the applicant to what the Tribunal was investigating. The first respondent submitted that such a close scrutiny of the way the Tribunal phrased its question was inappropriate and was a long way from showing that the Tribunal’s mind was closed.
As previously, the submissions in support of this ground also invite the Court to review the Tribunal’s fact finding which it cannot do. As found in relation to previous grounds, the Tribunal’s findings in respect of this issue were open to it and do not suggest a mind closed to persuasion.

The Tribunal’s treatment of the evidence adduced by the applicant in relation to his detention in a labour camp

In respect of this part of the claim, the allegation that the Tribunal might reasonably be apprehended to have been biased was based on the following particular:
16. The findings in relation to the two day difference appearing in the Labour Reform Relief Assessment Form and the finding that the applicant had dissembled in relation to the dates of his detention.
One document submitted by the applicant indicated that his detention concluded on 4 March 2004. This was consistent with another document which recorded four signatures all dated 4 March 2004 making and confirming the decision to release the applicant from the labour reform camp. Another document describes the duration of his incarceration as one year from the 6 March 2003 to 6 March 2004. The Tribunal recorded the applicant’s evidence on this issue in the following terms:
He was detained in March 2003, they took him away, they did not ask any questions, he was taken directly to the labour camp, they had prepared all the papers and asked him to sign, there was no way you could not sign, he did not have a trial. He was released in March 2004. The Tribunal indicated he had said in his statement he was released in April 2004. He stated maybe

4 March, maybe April, but anyway one year and he stayed in prison until 2 days short of one year. He was arrested on 4 March 2003. He was detained for 2 days short of 12 months. The Tribunal asked whether this meant he was released on 2 March 2004. He stated he did not remember that well, anyway because he felt he was detained for one year for not doing anything wrong, and his mind had gone numb. He confirmed he had been released 2 days short of 12 months. He remembered that because when he was inside he was counting the days every day. (CB 105 – 106).
The applicant submitted that although he had been confused about the month, he was nevertheless clear about the duration of his incarceration. The applicant’s counsel stressed that the applicant was a Chinese citizen with only six years’ education placed in a stressful situation at the Tribunal hearing and he could be expected to have been vague on dates. It was submitted that, given the applicant’s background, the nature of his recollection was an appropriate one and the fact that the Tribunal considered the applicant’s answers to amount to dissimulation was indicative of a closed mind.
The first respondent submitted that the characterisation of the evidence was a matter for the Tribunal and that although other Tribunals might have reached a different finding, the finding which this Tribunal reached was not one which showed that its mind was not open to persuasion.

As before, the applicant invites the Court to review the Tribunal’s fact finding which it cannot do. The Tribunal’s findings were open to it and do not suggest a mind which was other than unprejudiced and impartial.

The Tribunal’s treatment of the arrangements made for the applicant’s departure from China

In respect of this part of the claim, the allegation that the Tribunal might reasonably be perceived to have been biased was based on the following particulars:
17. The finding that the Tribunal’s conclusions were reinforced by the applicant’s arrangements to depart China.
18. The finding that there was a difference in the claims made in relation to how the applicant obtained his passport, such that it supported a finding that the applicant was fabricating claims and details as he gave evidence at the hearing.
19. The reliance on the passport being stated as having been issued on 21 January 2005, when the applicants [sic] claim was that the passport had been illegally obtained and the Tribunal elsewhere in the Decision accepted the prevalence of the irregular or improper issue of documentation.
20.The rejection of any need to consider whether the applicant or his wife had to get the assistance of a “connection” to get his passport on the basis that the Tribunal did not accept that the applicant was a Falun Gong practitioner known to the authorities. Yet the Tribunal relied on the applicants [sic] travel arrangements to find reinforcement for its conclusions concerning his Falun Gong practice. (emphasis in original)
The applicant relied on the following exchanges between the Tribunal member and the applicant found at pp.27 – 29 of the transcript of the Tribunal hearing:
APPLICANT: She said to me go out, don’t stay in China, and my friends all said to me don’t stay in China
TRIBUNAL MEMBER: And this was in 2006?
APPLICANT: Yes.
TRIBUNAL MEMBER: You said that you decided to leave in June 2006, did you [sic] wife offer to get a passport for you, or something else?
APPLICANT: At that time my wife said I’ll get a passport for you. I said but I have nothing. She said don’t worry I’ll get it done for you.
TRIBUNAL MEMBER: So this was in June 2006, is that right?
APPLICANT: Yes.
…
TRIBUNAL MEMBER: And did you ask when did you get that?
APPLICANT: Sometime last year she took me to the PSB and had a photo taken.
TRIBUNAL MEMBER: And that was for the passport, is that right?
APPLICANT: I didn’t know.
TRIBUNAL MEMBER: Is your evidence that your wife took you to the PSB in order for your photo to be taken but she didn’t tell you why?
APPLICANT: That’s right.
TRIBUNAL MEMBER: Did you ask her?
APPLICANT: I asked her what are we doing here. She said you will know in the future.
TRIBUNAL MEMBER: I have to say sir your evidence about how the passport came about seems unlikely. It seems unlikely to me that your wife would take you to the PSB, get a photo of you taken and yet you never asked what it was for. Do you have any comments?
APPLICANT: It’s a place beside the PSB or a place towards the public where you take photos for passport or ID card or that sort of thing.
TRIBUNAL MEMBER: So it’s your evidence now that you didn’t go to the PSB, you went to somewhere else to have your photo taken?
APPLICANT: It’s next door to the PSB but this place is one nominated or appointed by the PSB as a place to take pictures.
TRIBUNAL MEMBER: And did your wife organise all of the procedures to get a passport issued from the relevant Government office?
APPLICANT: Yes. Not just my wife, another relative as well.
TRIBUNAL MEMBER: What involvement did the other relative have?
APPLICANT: I don’t know.
TRIBUNAL MEMBER: How do you know that another relative helped?
APPLICANT: When delivering the passport he went to deliver the passport.
TRIBUNAL MEMBER: I don’t understand your answer sir. Can I ask you again, did you ask what involvement this relative had in getting your passport?
APPLICANT: This relative went to look for some connections or people that he knows well, goes through some connections.
TRIBUNAL MEMBER: And why?
APPLICANT: I don’t know.
In relation to this evidence, amongst other things, the Tribunal said this in its decision:
At the hearing when the Tribunal indicated it considered this claim unlikely, he then stated in fact his wife took him for his photo next door to the PSB. The applicant’s change in evidence, together with other instances when he changed his evidence during the hearing, raises concerns that the applicant was fabricating claims and details as he gave evidence at the hearing. (emphasis in original) (CB 119)
The applicant submitted that “PSB” was a term which the applicant initially used loosely and then clarified in subsequent answers. He submitted that the Tribunal’s finding that the applicant changed his evidence was demonstrative of a predisposition to find against him which, when considered with the other matters identified by him, would lead a reasonable lay person to apprehend the possibility of bias.
The applicant also raised concerns regarding the Tribunal's finding that the issuing to him of a passport in January 2005 indicated that, at the time, he was not of interest to the Chinese authorities. It was submitted that the applicant's surrender of his passport to the tour operator in Australia was consistent with the document being false because whoever issued the false passport would want it returned so that it would not be circulating in a foreign country which could lead to a train of inquiry identifying the people in China who issued it.
The applicant noted that the Tribunal concluded that his evidence concerning when and how he was issued with a passport was concocted, raising strong doubts about his credibility. The applicant submitted that an alternative finding was equally available and the fact that, once again, the Tribunal found against the applicant suggested bias when it was combined with the other matters raised by the applicant.
The first respondent submitted that the applicant’s case seemed to assume that he had told the Tribunal that his passport was false and therefore it was irrational for the Tribunal to place any relevance on the date it bore because such a passport might have any date. The first respondent submitted that neither the Tribunal’s reasons nor the transcript of the hearing before the Tribunal made it plain that the applicant did in fact say that the passport was false. Indeed, a consideration of the transcript suggests the contrary. At p.30 the following exchange appears:
TRIBUNAL MEMBER: So sir if I can confirm, your evidence is that someone who you don’t know but connected with the tour asked for you to give them your passport which had been validly issued, you did so, and all you did was keep a photocopy?
APPLICANT: Yes.
A consideration of the transcript reveals that the applicant never suggested to the Tribunal that his passport was false and, as the first respondent submits, if the applicant did not squarely put any suggestion that this was a false passport, then one needs to consider whether such an assertion can be inferred from the transcript passages quoted above at [51]. As the first respondent submitted, the exchanges appear to describe the process of obtaining an official passport. It was entirely rational for the Tribunal to be concerned that the events described were said to have occurred in 2006 and yet the passport was dated 21 January 2005. That being so, the Tribunal’s concerns are no more than logical and a reasonable observer would not apprehend that such a question suggested prejudgment on the Tribunal’s part.
The Tribunal’s finding that the applicant’s evidence concerning his passport changed during the course of the Tribunal hearing was a reasonable one to make. The passages from the transcript quoted above at [51] demonstrate that the applicant’s version of events did change. Whether that change was amplification, clarification or fabrication was a matter for the Tribunal to judge. It was open to the Tribunal to have concerns that the applicant was fabricating his evidence and the expression of such concerns cannot reasonably be the basis of an inference of prejudgment.
As to the issue date of the passport, this was a significant fact regardless of whether the passport was false. The applicant’s evidence was that he went with his wife to have his photograph taken for a passport and that this occurred in 2006. As already noted in these reasons, the applicant’s evidence was more consistent with the passport being regularly issued rather than with it being false. In this regard, the following passage from the above quotation is revealing:
TRIBUNAL MEMBER: And did your wife organise all of the procedures to get a passport issued from the relevant government office?
APPLICANT: Yes. Not just my wife, another relative as well.
But, in any event, the applicant’s allegation is that the reasonable observer would perceive a possibility of bias on the part of the Tribunal. Given the inconsistencies in the dates and the generally opaque quality of the applicant’s version of events it was reasonable that the Tribunal had concerns as to the applicant’s veracity and a reasonable observer would not perceive prejudgment on this account.
Finally, given all of the above it was reasonable for the Tribunal to conclude that the applicant was not a reliable witness with the consequence that such allegations as he made in relation to getting a passport from a “connection” could not be accepted. The applicant had shown himself to be a questionable historian and for the Tribunal to be unable to place reliance on the allegations of such a witness is reflective of logic, not bias.
For these reasons, I am not of the view that a fair-minded lay observer would reasonably apprehend that the Tribunal had not brought an impartial and unprejudiced mind to the determination of this aspect of the matter.

Consideration

The applicant relied on VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 which was submitted as presenting facts similar to the instant case in that the Tribunal found that that applicant's account was implausible, that he was prepared to alter and enhance his claims to meet the circumstances as they occurred and had changed his claim and factual assertions without any explanation. In that case, Kenny J described the Tribunal's questioning of the applicant as displaying a belligerent style with a tone of voice conveying a real suspicion that the applicant was not telling the truth and as showing that the Tribunal member was very much inclined to disbelieve him and his story.
Counsel for the applicant submitted that in this case there were frequent expressions by the Tribunal of the view that the applicant had changed his evidence notwithstanding that it was not actually changed. It was submitted that this case was like VFAB but without the belligerence.
Significantly, in VFAB’s case, Kenny J's characterisation of the behaviour of the Tribunal member at the hearing is also characterised by descriptions such as “very much inclined to disbelieve him and his story” (at 112 [45]); “aggressive” (at 114 [48]); “disbelief” (at 118 [55]); “she spoke over the applicant” (at 120 [59]); “over-keen to detect inconsistencies” (at 121 [60]). Her Honour reached the following conclusion:
The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim – that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. (at 127 [82])
The applicant then relied on NADH (2001) v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 and particularly at [115] where Allsop J, Moore and Tamberlin JJ agreeing, said:
By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.
The applicant submitted that that was what occurred here, lack of an ability or willingness to weigh all the material, and assertions lacking rational or reasonable foundation, at times ex facie wrong and selective of material going one way.
No single ground raised by the applicant would justify the conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to the resolution of the review application before it. The question is whether, cumulatively, the matters raised by the applicant, either some or all of them, meet that test or the variant suggested in Ex parte H cited at [10] above.
It should be noted their Honours observed in Ex parte H that in circumstances of an inquisitorial tribunal the person presiding will be required to test the evidence presented and that procedural fairness will often require an applicant to be plainly confronted with matters which bear adversely on the applicant’s credit or bring the applicant’s account into question. As their Honours said:
Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. (at 435 [30])
Their Honours also sounded an important cautionary note:
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. (at 435 [31])
The first respondent submitted that unreasoned findings, of which the Federal Court was highly critical in NADH (2001)’s case, were not seen in this case.
The respondent also submitted that there was no basis in the authorities for the argument advanced by the applicant that where a number of factual findings which were adverse to the applicant but open to the Tribunal were aggregated, the total picture becomes one of apprehended bias. The first respondent submitted that such an argument invited the Court to cross the line between judicial review and merits review.
A review of the transcript of the Tribunal hearing discloses none of the behaviour traits seen in VFAB. Nor do the conclusions drawn by the Tribunal evidence a lack of willingness to deal with the materials before the Tribunal such as was seen in NADH (2001). Rather, the Tribunal hearing was characterised by respectful and courteous conduct which, if not ingenuous or naïve was neither obviously tendentious nor prejudiced. Its conduct, as revealed by the transcript, does not suggest it was not open to persuasion. Further, the conclusions which the Tribunal drew were ones which were reasonably open to it and demonstrate a logical and rational approach to the matters presented to it for consideration.
As the first respondent submits, the applicant seeks to demonstrate bias by weight of allegations. The applicant challenges the Tribunal’s reasoning by asserting that an accumulation of discrete findings and allegations arising out of an ingenious and industrious dissection of the Tribunal’s decision can demonstrate bias. The applicant’s submissions seek to distil from a number of findings adverse to the applicant’s claim a conclusion that the Tribunal’s mind was not open to persuasion. However, the applicant’s concession that individually each matter which he raised might not evidence bias reveals the flaw in his case. As bias could not be demonstrated in relation to the discrete matters which were particularised, then the combination of them could not amount to bias either. Seen in another way, and as submitted by the first respondent, the argument constructed by the applicant is, in reality, an invitation to reconsider the Tribunal’s findings on the various matters he has particularised. His argument rests on the Court reaching conclusions on those matters different from the ones reached by the Tribunal and, relying on such reconsiderations, arriving at the view that the reasonable lay observer might perceive bias in the Tribunal.
Such an approach cannot succeed as the Court cannot revisit the Tribunal’s findings of fact and assessment of the merits of the application.
As was said in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [21], the critical issue is that the Tribunal member not close his or her mind against any additional material that might possibly prove probative. The Tribunal is not obliged to remain in a neutral state of mind during the entire course of the review of the delegate’s decision. Gleeson CJ and Gummow J said in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. (at 531 [71])
The fact that there was a series of findings which, on the merits, a differently constituted Tribunal might not have made against the applicant, falls some distance short of showing that the Tribunal as constituted on this occasion did not have an open mind.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 31 January 2008