SZLJB v Minister for Immigration
[2008] FMCA 629
•20 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLJB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 629 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) visa – whether applicant’s claims properly considered – merits review not the function of judicial review – whether breach of s.424A and s.425 of the Act – procedural fairness – whether actual or apprehended bias. |
| Judiciary Act 1903, s.39B Migration Act 1958, ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1998) 197 CLR 510 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27 SZHPD v Minister for Immigration & Citizenship [2007] FCA Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) [2001] HCA 28 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 |
| Applicant: | SZLJB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2945 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 17 March 2008 |
| Date of Last Submission: | 17 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 25 September 2007 and the amended application filed on 29 November 2007 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2945 of 2007
| SZLJB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 31 July 2007 and notified to the applicant by letter dated 21 August 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 14 February 1962 and was aged 45 years at the time of his application for a protection visa.
The applicant claims to be a national of China.
The applicant arrived in Australia on 28 February 2007 on a Chinese passport issued in his own name.
The applicant lodged an application for a protection visa on 26 March 2007 on the basis that he had been practising Falun Gong since 1999 and he and his family had been detained and persecuted by police for their involvement in Falun Gong (Court Book (CB) 27), including that:
·he had been a Falun Gong practitioner since early 1999
·in 1999 his uncle had been sentenced to two years imprisonment for practising Falun Gong
·the applicant had suffered mental torment and had been required to report to police following the detention of his uncle
·he continued to practise Falun Gong secretly
·in 2006 he had visited Australia to meet with some Falun Gong practitioners and on return to China was detained for two days and suffered serious mental and physical torture from the police.
On 12 April 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 15 May 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 47–50).
On 23 May 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 27 June 2007 to give oral evidence and present arguments (CB 53–54). The applicant attended the hearing and gave evidence before the Tribunal.
The applicant’s claims and evidence (CB 79–83)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 79–80). It further summarised the applicant’s claims at the Tribunal hearing, including that:
·the applicant practised Falun Gong with his uncle, a high ranking Falun Gong practitioner, since 1999. His uncle was sentenced to 2 years in prison for his involvement in Falun Gong
·after his uncle's arrest the applicant was persecuted by the police and so did not practise Falun Gong in public after that time
·the applicant had travelled to Malaysia for Falun Gong meetings and had planned to travel to the United Kingdom and Germany for Falun Gong meetings, but was unable to do so
·in June 2006 the applicant came to Australia to attend a Falun Gong meeting. After returning to China in 2006 the police came to him every day and questioned him about the Falun Gong meeting. The police also attended his son’s school
·the applicant has continued practising Falun Gong since arriving in Australia, at Campsie and in the city of Sydney.
The Tribunal’s findings and reasons (CB 85–88)
The Tribunal did not accept that the applicant was a Falun Gong practitioner nor that he had any association with Falun Gong. It found that the applicant fabricated this claim to establish a basis for refugee status. The applicant was unable to correctly answer many questions about Falun Gong which the Tribunal said raised concerns about his credibility and his claims of being a Falun Gong practitioner.
The applicant claimed that it cost him a lot of money to obtain his passport. The Tribunal noted that the applicant made several overseas trips between 2004 and 2006 and returned to China each time. It considered that the issue of the applicant's passport containing his correct details, and his continued use of that passport, showed the applicant did not have a concern about using his passport and therefore found it unlikely that the applicant had obtained it through a bribe. The Tribunal thus rejected the applicant’s claim that he had difficulty obtaining the passport.
The Tribunal found that the applicant's account of his having travelled to Australia on his own in 2006 to be unreliable, given his later admission that he travelled to Australia in a group on a ‘group tourism’ visa. The applicant also did not give any details about the Falun Gong meeting he claimed to have attended in Sydney in 2006. The Tribunal therefore rejected the applicant’s claim that he had attended a Falun Gong meeting in Sydney in 2006. It also rejected his claim that he was harassed and arrested on his return to China for attending the Falun Gong meeting.
It also found that his answers regarding attendance at Falun Gong meetings in Australia were vague and evasive and rejected his claim that he had any involvement with Falun Gong practitioners or the Falun Gong movement in Australia.
For these reasons, the Tribunal concluded that:
… the applicant’s lack of knowledge and lack of confidence when discussing Falun Gong, his description of his practice and experiences in China, and his description of his practice in Australia shows he is not a Falun Gong practitioner. The Tribunal does not accept that the applicant is a Falun Gong practitioner, or has any association with the movement. The Tribunal does not accept that the applicant will be perceived as a Falun Gong practitioner by anyone. The Tribunal does not accept that the Chinese authorities are interested in him because he is a Falun Gong practitioner or for any other Convention reason. The Tribunal finds that the applicant has fabricated this claim to establish a basis for refugee status.
The Tribunal rejects the applicant’s claimed involvement in Falun Gong in China. The Tribunal does not accept that: he has practised since 1999 with his uncle described as a high ranking Falun Gong practitioner; his uncle was jailed or that his friends were jailed; he was forced to do labouring for a week in 1999; he was fined and forced to attend classes in 2001; he travelled outside China in order to attend Falun Gong meetings; he attended a Falun Gong meeting in Australia in 2006; or was questioned by the authorities on his return, detained and fined. The Tribunal does not accept that his wife is a Falun Gong practitioner. The Tribunal does not accept that he subsequently left China because of a fear of harm, or that the authorities had any interest in him then or now. The Tribunal concludes that the applicant does not have a genuine fear of persecution for any reason at all.
The Tribunal does not accept that the applicant will have any association with Falun Gong in China if he returns. The Tribunal does not accept that the applicant will be motivated to learn about, or develop an interest in Falun Gong, if he returns to China. The Tribunal cannot discern any other circumstances which might give rise to a real chance of prospective harm, let alone persecution. The Tribunal concludes that the applicant does not face a real chance of persecution for any reason.
The Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason.
The proceedings before this Court
The applicant filed the application in this Court on 25 September 2007 setting out 3 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 29 November 2007 setting out 2 grounds of review.
The applicant appeared in person before this Court on 17 March 2008 with the assistance of a Mandarin interpreter. Mr Mitchell of counsel appeared for the first respondent.
The Court invited the applicant to say anything he wished to in regard to each ground and generally. Each of the grounds was translated for the applicant, prior to his being invited to say anything on each.
Grounds of application
The grounds of the application are:
(1)The Tribunal failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. The Tribunal had not notified me in writing the reason or part of the reasons for affirming the decision, I lost the opportunity to comment upon the reasons.
(2)The Tribunal failed to consider my claims. The Tribunal did not believe my claims for my application because of the Tribunal's bias against me.
(3)The Tribunal's satisfaction that I am not a refugee was not based on a rational and logical foundation.
Ground 1 of the application.
This ground is dealt with under ground 2 of the amended application. For the reasons set out therein, Ground 1 of the application is rejected.
Ground 2 of the application.
That part of ground 2, concerning the applicant’s assertion that the Tribunal failed to believe his claims due to bias on its part, is dealt with under Ground 1 of the amended application.
In regard to his assertion that the Tribunal failed to consider his claims, the applicant has not provided the transcript of the Tribunal hearing, nor any particulars to identify how he says this is so.
The mere fact that a person claims fear of persecution does not establish the genuineness of the asserted fear or that it is well founded: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 at page 25.
In the present case, the Tribunal carefully summarised each of the applicant’s claims in the protection visa application (CB 79-80), and his oral evidence at the Tribunal hearing (CB 80-83). It rejected the applicant’s claims on the basis of his lack of credibility, including his evidence concerning alleged events in China since 1999, his alleged attendance at a Falun Gong meeting in Australia in 2006, and his detention and his being fined by Chinese authorities on his return.
A fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing (see ground 2 of the amended application below); and closely noted the applicant's responses. The Tribunal further had regard to independent country evidence and then made findings based on all the evidence and material before it.
I consider that the Tribunal’s findings, in particular as to the applicant’s adverse credibility, were open to it on all the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion, based on those findings, that the applicant was not a person to whom Australia has protection obligations. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].
As further observed by the Full Federal Court in NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion in this case does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Accordingly, for the reasons stated above, and for the reasons stated under Ground 1 of the amended application in relation to the allegation of bias, Ground 2 of the application is rejected.
Ground 3 of the application.
The applicant has not provided any particulars to identify how he says the Tribunal's decision that he is not a refugee, was based on an irrational and illogical foundation.
Any want of logic by an administrative decision-maker in drawing an inference of fact does not, per se, constitute an error of law. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, Mason CJ stated that:
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place [emphasis original].
Subsequently, in NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, the Full Federal Court, after quoting the above comments by Mason CJ, concluded at [30], that:
However want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT's reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error (and see NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [25]).
I consider that the Tribunal decision in the present case was based on rational grounds, and does not display any want of logic. The Tribunal closely considered the claims made by the applicant in his application for a protection visa, and his evidence at the Tribunal hearing concerning his alleged history and involvement in Falun Gong. Its finding that the applicant lacked credibility was based on a rational consideration and assessment of his statements and answers to questions at the Tribunal hearing, including his level of knowledge of Falun Gong, his experiences in China, and his practice of Falun Gong in Australia (and see ground 2 of the application above).
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.
Grounds of the amended application
The grounds of the amended application are:
(1)The Tribunal did not believe my claims because of the Tribunal's bias against me. The Tribunal failed to assess the chance of my persecution on my return to China. The decision was biased.
(2)The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with s.424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason.`
In the applicant’s written submissions, he sets out the following further ground of review, which essentially provides particulars of the above ground 2 of the amended application and will thus be dealt with under that amended ground:
The Tribunal failed to carry out its statutory duty
Particulars
(a)The only information before the Tribunal was that contained in the First Respondent’s file and that given to the Tribunal by the Applicant.
(b)The Tribunal was required to provide particulars of the information that was the reason, or part of the reason for affirming the decision. Migration Act 1958 s.424A. The Tribunal also was required to explain why the information was relevant and provide the applicant with an opportunity to comment upon it.
(c)The above particulars had to be provided in writing SAAP v Minister for Immigration and Multicultural and Industrial and Ethnic Affairs (2005) HCA 24 (18 May 2001)
Mc Hugh J
Para 68 “…the assumption that no breach of s 424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the section. Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligations is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.”
Para 77 “…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.”
Hayne J
Para 180 “I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, so far as reasonably practicable, that the appellants understood why it was relevant to the review. The Tribunal's failure to do so constituted jurisdictional error.”
Para 208 “…Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
(d)The information to be given extends to that information given by the Applicant to the First Respondent as part of his application for a visa.
Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27
Para 17 “…In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.
The court did not accept the Minister’s argument that “Application” in the context was said to mean “all information given by the applicant to officials in the department (including that provided to the Tribunal) for the purposes of determining whether to grant a protection visa to the applicant.”
(e)The Tribunal based its findings on the information, or lack of information, contained in the Applicant's application for a visa and was required, by s.424A, to give particulars of the information, explain why the information is relevant and provide the Applicant with an opportunity to comment upon it. The Tribunal's failure to so act was a jurisdictional error.
Ground 1 of the amended application.
The applicant has not provided particulars to identify the precise nature of how he says the Tribunal was biased and how it thus failed to properly assess his chance of being subject to persecution if he returned to China. Further, the applicant has not provided the Court with the transcript of the Tribunal hearing.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69].
Legal principles: actual bias
In determining what constitutes actual bias, the High Court, in Jia Legeng quoted, with approval, the test adopted by French J at first instance, and by the Full Federal Court, in that case:
French J said that actual bias…..."must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made" [35]
The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. [72]
In regard to the concept of prejudgment, the Federal Court in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [21] observed that:
The Court has inferred actual bias by prejudgment from various factors, including a decision-maker's hostile approach to a party in a hearing, and a failure on his or her part to enquire into or obtain readily available and critically important information.
The High Court, in Jia Legeng also commented at [71], in the context of determining actual bias, that:
The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.
In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59], the Full Federal Court observed that in order to establish bias an applicant would need to demonstrate that a decision-maker “acted dishonestly or arbitrarily or capriciously”.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
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.
Legal principles: apprehended bias
In regard to apprehended bias, the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) [2001] HCA 28; 179 ALR 425 at [27]-[28], compared its application in judicial/curial as opposed to administrative/inquisitorial proceedings:
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. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
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.
The High Court at [30] also pointed out that a tribunal, as opposed to a court, may need to more closely question an applicant or other witness without that questioning amounting to an apprehension of bias:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. 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.
The High Court at [31] also discussed the relevance of apprehended bias in the context of a legally unrepresented applicant at a tribunal hearing:
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.
In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [115], the Full Federal Court identified the following considerations which may support a conclusion of apprehended bias:
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.
Whether Tribunal member biased
The first respondent has drawn the attention of the Court to a Tribunal Case Note, and a linked email, of 18 May 2007 [being three days after the applicant applied to the Tribunal] (CB 55-56). They indicate that administrative staff within the Tribunal allocated to the same Tribunal member the present case and another case with various similar elements:
[Email] Please constitute the above cases to the same Member if possible. Cases are related in CaseMate (similar case details) and case notes are on file.
[Case Notes] Both applicants from PRC, same date of arrival …same postal address; PV & RRT applications lodged by the same dates…Falun Gong claims. Both claim to be employed by [name of company]: invited to Australia by [name of company] for business reasons.
Email sent to Constitutions team requesting allocation of both cases to the same Member.
Despite this above communication, the first respondent submits that:
The relevant member who made the Tribunal's decision is a Mr or Ms Packer. That's to be found at Court Book page 76. In my submission that's significant because it indicates that the person who made those file notes was a different person to the person who made the decision.
In my submission, the mere fact that a Tribunal or a Court internally allocates cases in a particular manner does not demonstrate that the relevant Tribunal member or indeed judicial member in the case of the Court is not open to persuasion or that a fair minded lay observer might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided.
In my submission, something more is required for it to be demonstrated that the Tribunal member, that is the ultimate decision maker, was not open to persuasion or would be perceived not to have brought an impartial mind to the application before the Tribunal member (Transcript 17 March 2008 at p 9).
I accept the first respondent’s submissions on these matters. I consider that administrative staff allocating two cases with some similar features to the same Tribunal member does not, without more, indicate that the Tribunal member himself or herself did not, or could not, decide each case on its own merits.
In this case, there is simply nothing disclosed on the face of the Tribunal decision record to support any assertion by the applicant of actual bias on its part, let alone to provide a basis for proof of such an allegation. There is nothing which demonstrates that the Tribunal prejudged the application on the basis that it adopted a hostile approach to the applicant, or failed to enquire into or obtain readily available and critically important information, or that it was so committed to a conclusion already formed as to be incapable of alteration, or that it had a closed mind not open to persuasion, whatever evidence or arguments may have been presented to it. Likewise, there is nothing to disclose that the Tribunal acted dishonestly or arbitrarily or capriciously.
I also consider that there is nothing disclosed on the face of the Tribunal decision record to support any assertion of apprehended bias on its part, let alone to provide a basis for proof of such an allegation. There is nothing to demonstrate that a hypothetical fair minded lay observer 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, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process or that it was not open to persuasion or was unable or unwilling to fairly evaluate all the material before it.
I am further satisfied that while it was necessary in this case for the Tribunal to closely question the applicant on the details of the claims and evidence he put forward in support of his application, nothing on the face of the Tribunal decision record indicates that the applicant was overborne or intimidated when giving evidence to the Tribunal or in his answering questions quite properly put to him by the Tribunal for the purpose of assessing the basis upon which he claimed to fear persecution if he returned to China.
I am thus satisfied that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record. Indeed far from demonstrating any form of bias on the part of the Tribunal, its detailed questioning of the applicant at the Tribunal hearing (see CB 80-83) to try to get responsive and informative answers to its questions that went directly to the merits of the applicant's claim to fear persecution if he returned to China, militate against any such conclusion of prejudgment or procedural unfairness on its part.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
The applicant asserts that the Tribunal's failure to notify him in writing of what would be the reason or part of the reason for affirming the decision of the delegate, and giving him an opportunity to comment or respond prior to the Tribunal handing down its decision, was contrary to the statutory requirements of s.424A.
The Tribunal's decision in this case was based on its assessment of the written statement given by the applicant in his application for a protection visa (CB 79-80), his oral evidence given at the hearing (CB 80-83), and relevant country information (CB 83-85). No s.424A letter was sent to the applicant by the Tribunal inviting his comments on information upon which it might draw an adverse conclusion.
As well as the statutory exemptions in s.424A(3), it is evident from the recent High Court decision of SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] 235 ALR 609 that a proper construction of the word "information" in the context of s.424A does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
In the present case, the credibility of the applicant’s evidence was equally at the forefront of the Tribunal’s thought processes. The Tribunal rejected the applicant’s material claims based on its finding that the applicant lacked credibility. Accordingly, the Tribunal was under no obligation under s.424A to notify the applicant of its findings on his evidence, including its disbelief of his various claims, before determining the application. I thus detect no breach of s 424A in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory requirements of s.424A of the Act.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion in this case does not amount to an error of law (see ground 2 of the application above).
The applicant also makes the broad assertion that the Tribunal has “not complied with its statutory duty”. In regard to the Tribunal’s further statutory obligations under s425(1) of the Act, the applicant has not provided any particulars, nor the transcript of the Tribunal hearing, nor any evidence to identify what if any determinative issue or issues he has been denied the opportunity to respond to. As relevantly observed, in this regard, by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241:
The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised …… In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice (at [21]);
and that:
it is sufficient if the gravamen or substance of the issue or factor is brought to the [applicant's ] attention; or that the applicant is on notice of its 'essential features’ (at [25]).
A fair reading of the Tribunal decision demonstrates that the Tribunal complied with its statutory obligations under s.425(1) by giving the applicant the opportunity at the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the Tribunal identified for the applicant the determinative or critical issues upon which the decision was likely to turn, and gave the applicant sufficient opportunity to give evidence and make submissions concerning these determinative issues before it reached its conclusions: SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 at [33]–[48].
Beyond this, procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. As observed by the High Court in SZBEL at [47]-[48] in this regard:
It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor …
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it …”…
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am therefore satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
For the reasons stated above, Ground 2 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and amended application before this Court are dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 20 May 2008
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