SZMJH v Minister for Immigration
[2008] FMCA 1320
•2 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1320 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – issue of the applicant’s identity raised at the Tribunal hearing – applicant asked to provide proof of his identity and doing so – Tribunal making no finding on applicant’s identity but rejecting his credibility – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) considered – whether the Tribunal decision vitiated by apprehended bias considered – Tribunal informing the applicant at the hearing, when he was unable to produce his genuine Chinese ID card, that the card would prove his identity – card later produced – Tribunal failing to accept the card as proof of identity but finding that the applicant was involved in identity fraud. |
| Migration Act 1958 (Cth), ss.424A, 425, 476 |
| Ebner v Official in Bankruptcy (2000) 205 CLR 337 Gomez v Minister for Immigration (2002) 190 ALR 543 Lee v Minister for Immigration [2005] FCA 464 Minister for Immigration v Anthonypillai (2001) 106 FCR 426 Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NADH v Minister for Immigration (2005) 214 ALR 264 Re Minister for Immigration & Anor; Ex parte Epeabaka (2001) 206 CLR 128 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Sellamuthu v Minister for Immigration [1999] FCA 247 SXFB v Minister for Immigration [2005] FCAFC 164 SZBEL v Minister for Immigration [2006] HCA 63 SZEOQ v Minister for Immigration [2006] FCA 1171 VFAB v Minister for Immigration (2003) 131 FCR 102 |
| Applicant: | SZMJH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1473 of 2008 |
| Judgment of: | Driver FM |
| Hearing dates: | 28 August & 19 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2008 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 13 May 2008.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
The first respondent shall reimburse to the applicant the application fee of $350 paid by the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1473 of 2008
| SZMJH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 13 May 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 21 August 2008.
The applicant claims to fear persecution in China on the basis of his actions to organise a public protest against corrupt government and police.[1]
[1] Green Book (GB) 101-109
The applicant claimed he was subject to inhumane treatment when detained illegally by the Chinese police authority (PSB) from 26 February 2006 to 17 March 2006.
The applicant claims authorities threatened to arrest and detain him if he exposed any information relating to his detention and the ill treatment of him and / or his fellow detainee during detention.
The applicant claims authorities had been bribed by his previous employer to ensure he and his fellow workers did not pursue unpaid wages and then to ensure he did not provide evidence relating to detention.
The applicant claims as a result of distributing anti-government petitions he was questioned by police in excess of 10 times between July 2006 and September 2006.
The applicant claims to have organised an open anti-government protest on 3 October 2006. The protest was suppressed by the police and 20 people were arrested. The applicant escaped arrest and immediately fled to Hainan Island.
The applicant claims with the assistance of a friend he acquired a false passport and left China on that passport.
The applicant claims since his departure from China his family has been subjected to investigations and Chinese police have issued a warrant for his arrest.
Decision of the delegate
On 16 December 2006 a delegate of the Minister refused to grant a protection visa to the applicant[2].
[2] GB at 36 - 44
That decision was based on an assessment of the applicant’s claims and independent country information. The delegate found the applicant did not have a well-founded fear of persecution.
Review in the Tribunal
On 16 January 2007 the applicant lodged an application for review of the delegate’s decision in the Tribunal.[3]
[3] GB at 45
In a letter dated 12 February 2007 the applicant was invited by the Tribunal to attend a hearing and provide any documents or written arguments to the Tribunal in support of his claims.[4]
[4] GB at 53
On 28 February 2007 the applicant attended a hearing before the Tribunal.
The Tribunal subsequently sent two s.424A letters to the applicant, one on 10 April 2007[5] and the other on 9 April 2008[6] seeking comment from the applicant on certain information the Tribunal found to be central to its decision, namely information relating to the applicant’s identity and contradictory information contained in the applicant’s Statutory Declaration and that given at the hearing.
[5] GB at 71
[6] GB at 82
The applicant’s agent responded to both s.424A letters[7].
Tribunal’s decision
[7] GB at 79 and 85
On 2 May 2008 the Tribunal handed down its decision and affirmed the delegate’s decision not to grant a protection visa to the applicant.
In coming to its decision first, it reviewed the applicable law. It then set out the applicant’s claims and evidence. Then it set out applicable country information. Finally, it set out its findings and reasons.
The Tribunal accepted the applicant was a citizen of China.
The Tribunal’s decision was based on a finding that the applicant was an unreliable witness and a person of poor credibility. On this basis his claims were not accepted[8].
[8] GB at 109
This adverse credibility finding was due to the following[9]:
a)A rejection of the applicant’s explanation for not being able to correctly state his date of birth;
b)A rejection of the applicant's responses to the Tribunal’s s.424A letters regarding the discrepancy in the date of the applicant’s false passport being issued (7 June 2005) and the period in which the applicant claims to have been persecuted (February 2006 to November 2006), and the date on which the applicant claims to have obtained the passport (3 October 2006);
c)A rejection of the applicant’s account of arrest, detention and mistreatment.
[9] GB at 109-113
The Tribunal concluded that the applicant was not a witness of truth and his claims were an “elaborate fabrication” to support his refugee claim.[10] It rejected all of his claims to have suffered harm in the past.
[10] GB at 111
Finally, the Tribunal considered the applicant’s claim to fear persecution by reason of his political opinion, but did not accept the applicant was a person of adverse interest to the Chinese authorities.[11]
[11] GB at 111
The Tribunal found the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the applicant was not a person to whom Australia owed protection.
The application
These proceedings began with a show cause application filed on 10 June 2008. That application contains the following grounds:
1. In the Tribunal’s decision, the Tribunal stated that:
The Tribunal finds the confusion over the applicant’s true identity to be remarkable. The Tribunal finds that this confusion must be juxtaposed with its observation of the applicant’s inability to convincingly tell the Tribunal in the hearing what was his true date of birthday. He claimed, in explanation of the confusion, that it was usual for him to consider his “lunar” birthday as his actual birthday. During the course of the hearing the applicant insisted to the Tribunal he was not … . When the applicant was asked at the hearing by the Tribunal to prove his identity to the satisfaction of the Tribunal he could not verify his claimed identification as he claimed his identity card was at home (in Sydney). He later submitted a (worn) China (PRO) ID card to the Tribunal as proof of his assertion (TL, f. 55). He also responded to questions about his claimed identity (following invitation pursuant to s.424A of the Act) unconvincingly. He insisted that the Tribunal’s duty was to verify his identity from the raft of conflicting information. The Tribunal finds difficulty (due to the conflicting evidence) in ascertaining the true identity of the applicant but he is apparently, from the whole of the evidence before the Tribunal, a china (PRC) citizen.
The Tribunal has also stated that:
The Tribunal has previously established that the manner in which the applicant has attempted to establish his real identity when applying for the visa (the subject of this review) and the processing of his application has been unsatisfactory and confusing. He has subsequently contradicted the manner in which his (claimed) false passport was obtained for the purposes of fleeing China (PRC). Furthermore, his explanation [for] the discrepancy between the date of issue of his (claimed) false passport and the date of the claimed persecutory incidents that form the basis of his refugee claims is implausible and unconvincing. These observations lead the Tribunal to find the applicant to be an unreliable witness and a person of poor credibility.
2. Regarding my identity, the Tribunal failed to consider the following important evidences correctly, impartially and carefully.
2.1 At the very beginning while I lodged my application with the Department of Immigration and Citizenship, my answer to Question 3 “What other names have you been known by?” of Form C of the Protection Application was “…”.
2.2 My signature on the Statutory Declaration as well as my application form (Form B and C) was the Chinese words - … .
2.3 My original Chinese ID Card, which I have submitted to the Tribunal, is definitely uncontroverted evidence showing my genuine identity.
3. The issues are:
3.1 The Tribunal itself has found that “…the delegate was completely unaware that the application was the person called … …”, which is significant evidence that the delegate failed to consider my application carefully and properly.
3.2 Apart from describing my Chinese ID Card with a word like “worn”, there is no evidence showing that the Tribunal has taken any substantial steps to exam my Chinese ID Card, even though I clearly stated in my letter to the Tribunal in April 2007 as follows:
…I am willing to have it thoroughly examined by relevant authorities in Australia.
4.As a matter of fact, I never ever accept that my explanation regarding my new name “…” is inconsistent.
4.1 Initially, I claimed that with assistance of a friend, I had my name changed to “… (date of birth: 16/02/1969)” and got a passport in my new name;
4.2 At the hearing before the Tribunal, I gave detailed information that the friend, who had assisted me to have my name changed and to get me a passport, had been Mr Chen;
4.3 In my letter in April 2008, I gave further detailed information that:
…I got the passport only at the time while it was very shortly before I left China on 23 November 2006. When I received the passport, I have found that I got a new name “…” with a new date of birth “16/02/1969” and a new place of birth “Hainan”.
4.4 So, from the beginning to the end, I have actually described one thing but from different aspects. Initially, I gave general information about what has actually happened:
…with assistance of a friend, I had my name changed to “…(date of birth: 16/02/1969)” and got a passport in my new name;
I then actually gave more detailed information about who the friend mentioned above was; and I gave the answer was:
The friend, mentioned above, was Mr Chen
Finally, I actually gave further detailed information about when I got the passport; and thus I claimed that …I got the passport only at the time while it was very shortly before I left china on 23 November 2006.
4.5 So, I have to say that I have actually described one thing but from different aspects the beginning to the end. Unfortunately, my evidence has been misstated or misunderstood by the Tribunal, because the Tribunal failed to consider the following important evidences correctly, impartially and carefully.
5.The Tribunal failed to consider my evidence and failed to consider actual situation in China.
5.1 We have mainly used Chinese lunar calendar in my hometown even today. However, the date of lunar calendar definitely does not match the date of normal calendar. In my hometown, it is a common sense that the people must give his or her date of birth according to Chinese lunar calendar if he or she has been asked about “true date of birth”; because it is common sense in my hometown that we only regarded the birthday according to Chinese lunar calendar as “true date of birth”…
6. It is unacceptable that the Tribunal failed to consider my major claims apart from only paying its attention to my identity; and I do not think that the Tribunal has considered my claimed fairly and properly. (emphasis in original retained).
At a directions hearing in this matter on 9 July 2008 I identified a possible further ground of review, namely a possible breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”), based upon the principles established by the High Court in SZBEL v Minister for Immigration [2006] HCA 63, in view of the fact that a key issue for the Tribunal was the applicant’s identity, which was not an issue before the delegate. The matter was listed for a final hearing on 28 August 2008. That hearing had to be aborted because correspondence sent to the applicant’s panel adviser and the applicant by the Court registry had given an out of date address for the applicant and he had not had the benefit of panel advice. At that hearing, I had invited the parties to also consider the question of whether the Tribunal decision might be vitiated on the ground of apprehended bias, having regard to a number of aspects of the Tribunal decision. The applicant confirmed at the adjourned hearing of the matter on 19 September 2008 that he had received advice under the panel advice scheme.
Evidence and submissions
I received the green book filed on 30 June 2008. I also received as exhibits an Auscript transcript of the hearing conducted by the Tribunal on 28 February 2007[12] and the applicant’s original Chinese identity card showing his asserted real identity[13]. The applicant made oral submissions at the trial on 19 September 2008. The Minister relies upon written submissions filed on 21 August 2008 and supplementary written submissions filed on 15 September 2008, as well as oral submissions by counsel made on 19 September 2008.
[12] Exhibit R1
[13] Exhibit A1
Reasoning
Except to the extent that they raise issues of a breach of s.425 of the Migration Act and apprehended bias, there is no substance to the six grounds of review contained in the show cause application. I agree with, and adopt for the purposes of this judgment with necessary amendments, the Minister’s submissions on those grounds, subject to consideration below of the two issues of substance.
Ground 1
Ground 1 of the application contains a restatement of part of the Tribunal’s decision regarding the applicant’s identity, and the Tribunal’s findings about this issue. It does not contain any actual complaint about the Tribunal’s decision, or any basis for asserting the Tribunal committed jurisdictional error.
Ground 2
In ground 2 the applicant alleges the Tribunal did not consider three pieces of the applicant’s evidence correctly, impartially and carefully. Those pieces of evidence are:
a)the applicant’s response to Question 3 on the original protection visa application (“What other names have you been known by?”), when he said he was also known as “…”;
b)the signature on statutory declaration and the protection visa application (Form B and C), in the name “…”;
c)the applicant’s original Chinese ID card provided to the Tribunal.
A fair reading of the Tribunal’s decision reveals the Tribunal member considered all the evidence before it.
So far as the evidence referred to at [30(a)] above is concerned, the Tribunal member considered this response and noted that the applicant had neglected to submit the information required by the protection visa application form requiring him to give reasons why the name was used by him[14]. This observation formed part of the Tribunal’s adverse credibility finding against the applicant. Such a factual finding was open on the evidence.
[14] GB 110
So far as the evidence referred to at [30(b)] above, the Tribunal considered the applicant’s signature (in the name …) on the statutory declaration, and found that this evidence added to the confusion about the applicant’s identity[15]. Again it was a finding of fact open on the evidence.
[15] GB 110
Finally, in relation to the applicant’s original Chinese ID card, the Tribunal considered this evidence as part of its assessment of the applicant’s identity. The Tribunal found this evidence was part of the conflicting evidence presented by the applicant on his identity[16]. This was a factual finding.
Ground 3
[16] GB 110
In ground 3 the applicant first alleges that the delegate failed to consider his protection visa application “carefully and properly”. Secondly, the applicant asserts the Tribunal failed to examine his Chinese ID card.
As to the first part of ground 3, this Court does not have jurisdiction under the Migration Act to review the primary decision of the delegate: see s.476(2)(a) of the Migration Act. The first argument in ground 3 is therefore unmeritorious.
So far as the second part of ground 3 is concerned, the Tribunal did considered the applicant’s Chinese ID card in its assessment of the issue of the applicant’s identity, contrary to the applicant’s assertions[17]. It is well accepted that the Tribunal is entitled to accept or reject or give such weight to the evidence proffered by the applicant as it thinks appropriate in all the circumstances: see Lee v Minister for Immigration [2005] FCA 464 at [27].
[17] GB 110
To the extent that ground 3 is an assertion that the Tribunal failed in some way to investigate the Chinese ID card, then this argument is unmeritorious. The Tribunal did not have any legal obligation to investigate the applicant’s claims or, specifically, the Chinese ID card under the Migration Act: see Minister for Immigration v Anthonypillai (2001) 106 FCR 426 at [86]; Gomez v Minister for Immigration (2002) 190 ALR 543 [26]; Minister for Immigration v SGLB (2004) 207 ALR 12 [43]; SXFB v Minister for Immigration [2005] FCAFC 164 at [8].
Ground 4
Ground 4 is a challenge to the finding made by the Tribunal that the applicant gave inconsistent evidence. This finding made by the Tribunal is a factual finding that was open to the Tribunal. This Court does not have jurisdiction to conduct a merits review of the applicant’s claims under the Act: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Ground 5
Ground 5 complains that the Tribunal failed to consider the situation in China in relation to the Chinese Lunar Calendar. This ground appears to seek impermissible merits review. As noted above, merits review is not permitted in this Court under the Migration Act.
Ground 6
In his final ground the applicant asserts the Tribunal failed to consider his claims fairly and properly, only paying attention to the applicant’s identity. The applicant appears to be claiming the Tribunal ignored his refugee claims.
It can be seen from the Tribunal’s decision that the Tribunal considered the refugee claims made by the applicant. In coming to its decision that it did not accept any the applicant’s claims of Convention based persecution, the Tribunal first set out the reasons why it was unable to accept the applicant’s credibility. Next, the Tribunal found, that based on the comprehensive rejection of the credibility of the applicant, that it did not accept the applicant’s Convention based claims as valid. It then considered and rejected each aspect of the refugee claims relied upon on this basis.
The approach taken by the Tribunal in its consideration and ultimate rejection of the applicant’s claims based on the adverse credibility findings it made about the applicant was open to it. As was observed by Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration [1999] FCA 247 at [24]:
... In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria of a "refugee" will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.
In the present case there was a comprehensive rejection of the credibility of the applicant. Prima facie, there was nothing erroneous in the Tribunal basing its rejection of the applicant’s refugee claims, after considering them, on the premise that he was an unreliable witness and a person of poor credibility[18].
[18] GB 111
I am also satisfied that the Tribunal met its obligations under s.425 of the Migration Act. On that issue, the Minister submits as follows:
The issue in this ground is whether the Tribunal committed jurisdictional error by breaching its s.425 obligations by not giving the applicant a real and meaningful hearing in the sense required by SZBEL.
In particular, the Court raises the concern that the applicant may not have been given the opportunity at the oral hearing before the Tribunal to be heard on the issue of the “applicant’s identity”, an issue that was not relevant to the original delegate’s decision to refuse to grant a protection visa but an issue that was determinative against the applicant in the Tribunal. This concern arises from the observation of the Court on 28 August 2008 that the Tribunal’s decision seems to suggest that the applicant was not challenged in any way at the oral hearing before the Tribunal about the issue of his identity.
In response to this concern the first respondent submits there was no breach of s.425 by the Tribunal, nor does any error of the kind identified by the High Court in SZBEL for the reasons that follow.
In SZBEL the Court said (at [33-35]):
[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.
[34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
SZBEL is authority for the proposition that where the Tribunal identifies issues that are different to those that arose before the delegate, and those issues are determinative against the applicant, then the Tribunal must identify those new issues to the applicant so that he/she may have a real and meaningful hearing on those issues before the Tribunal Member.
In the present case it is accepted that the issue of the “applicant’s identity” was an issue that was different to those issues that were relevant to the delegate’s decision. Before the delegate there was no issue about the applicant’s identity (GB43-44). The delegate had assumed that the applicant was who he had said he was in his passport and in his visa protection application.
As the issue of the applicant’s identity is a new issue, the question becomes whether the Tribunal identified this new issue to the applicant at the oral hearing and thus allowed the applicant to address it.
It is clear from the transcript of the oral hearing that the applicant himself raised the issue of his identity at the commencement of the hearing (TP 1.45). It is also clear from transcript (TP1-15) that the issue of the applicant’s identity and the confusion surrounding the applicant’s evidence as to his identity were matters that were discussed extensively by the Tribunal Member and the applicant.
The Tribunal Member spent considerable time trying to ascertain the applicant’s true identity and why he would put a false name on his visa protection application. There can be no doubt the issue of the applicant’s identity was identified by the Tribunal Member to the applicant, and that he was given a real and meaningful hearing on the issue in the sense required by the High Court in SZBEL.
The Tribunal has not breached its s.425 obligations.
I have the benefit of a transcript of the Tribunal hearing which (as noted above) was tendered in evidence[19].
[19] Exhibit R1
I accept from the transcript that it was the applicant who raised the issue of his identity at the Tribunal hearing. The Tribunal found considerable difficulty in establishing the applicant’s identity by questioning the applicant, as his answers were frequently non responsive. It appears that the applicant may have been confused by some of the questions put to him and the presiding member was certainly confused by the applicant’s answers. Essentially, the Tribunal was uncertain on the question of identity because the documents available at the hearing all pointed to the applicant being the person who the applicant then asserted was a false identity. It was only the applicant’s oral assertions that supported the conclusion that he was the person he then claimed to be. The Tribunal was concerned that the applicant had not revealed what he claimed was his true identity when he applied for a protection visa. The transcript on page 6 records the following exchange:
MR COOK: ‑ ‑ ‑ my own name – no, that’s not the point I am making. Please listen to me. Just listen to me carefully. I know you are probably a bit nervous so just listen to me – listen to me carefully, please. It does happen that people forge Chinese documents. It does happen. Bribery, or some friend or something in the PSB. Apparently, you may be able to forge a Chinese passport. Okay? And the reason people do that is to avoid detection from the Chinese authorities to exit China. Okay? Now, that’s one thing. That’s one separate thing but if you are successful enough to arrive and go through the door into Australia and make an application for protection by saying, I’m a refugee, I have been persecuted in my country, I can’t go back there. It’s an application for protection, protecting you from being persecuted, right, tortured, detained, whatever. Under United Nations Law that applies in Australia that’s what the protection visa is. It’s the Australian way of saying, we want to protect you from harm. Okay? Do you understand that?
THE INTERPRETER: Yes, I understand.
MR COOK: That’s why you went to the department to make the application, to say to the Australian government, please protect me, protect me from the Chinese – the officials, the PSB, whoever, the corrupt officials, whoever it is that is persecuting you. Please protect me, Australian government. Let me stay in Australia. Right? That’s what you do when you apply for a protection visa. So you got in the door into Australia. You’ve gone through the airport. You are not in China any more. You are going to the Department of Immigration and you are making an application for a protection visa to be protected.
Okay? So why would you give the Australian authorities the wrong name? Why didn’t you just say, forget that passport. I’m not …, I’m …. That’s who I am. That’s who I really am. I forged that passport. That’s not me. That’s some other guy. It’s my photo but it’s not me. This is who I am and I am asking for protection? Why would you give them the wrong name? Now you are telling me but why didn’t you tell them?
THE INTERPRETER: I didn’t have that information in my documents.
The Tribunal also put the applicant on notice that the he would have problems if he was unable to satisfy the Tribunal as to his real identity. On page 14 of the transcript the presiding member is recorded as saying:
MR COOK: Well, put it this way. You are going to have some very serious problems if I can’t establish your identity. Okay? Please understand that. Nothing personal, but I am in a state of complete confusion about your identity. I suspect you may be telling me the truth but the documents tell me you are not. So please understand my situation. I’m just a logical guy, right, sitting here and two important documents have your false name. Buried in one document is your son’s name, which is the name you say you are – you claim – and buried in another document is a statement that you changed your identity.
They are the only things I can go on but if I can see that Chinese ID, the plastic ID, I will know you are telling me the truth. Now, you may – you want to make me hang around waiting for one week for you to get that document. I mean, I am not supposed to wait at your convenience. You are supposed to be at my convenience, okay – with all due respect. Why can’t you go back to Brisbane earlier? Could you tell me? Could you get someone in Brisbane to send the document?
THE INTERPRETER: I don’t know what the way here and I don’t know how long it will take if I send something by post.
I accept from the available material that at the Tribunal hearing the Tribunal put the applicant on notice that the issue of his identity was likely to be an issue of significance in the Tribunal decision and that the applicant needed to do more than satisfy the Tribunal that the applicant was who he claimed to be. The Tribunal also put the applicant on notice at the hearing that the manner in which the applicant had sought protection using a false identity was also likely to be an issue of significance in the decision.
The final issue is whether the Tribunal decision is vitiated on the ground of apprehended bias. The Tribunal in its decision[20] dealt with the question of the applicant’s identity in the following terms:
[20] GB 109-111
The applicant has been involved in identity fraud. He claims that his visa application name of … is not his real name and his real name is actually …. He has claimed that he secured the passport he used to enter Australia with the assistance of another friend and that he thought this person was a relative of his friend Mr Chen and this person changed his name to … for the purposes of securing the (claimed fraudulent) passport which he used to exit China (PRC).
The applicant submitted his Protection visa (PV) application using the name … but indicated his other name (…) in the “what other names have you been known by” box on the Protection visa application form. To further confuse the issue the applicant deposed his Statutory Declaration of claims (on the Department file) using the name … and then claimed in the hearing (and pursuant to s.424A of the Act) to have signed off the Statutory Declaration in the Chinese script using the name - …. He claimed he had referred to the fact that he had changed his name in that Statutory Declaration document. The Tribunal observes that the applicant does refer to a change of identity. However, he does not actually refer to the name … in that Statutory Declaration when he talked about his “new name” yet he did sign the name … at the bottom in Chinese script.
The applicant has also stated in the hearing that he referred to this fact in the PV application where there is a box called “what other names have you been known by”. In that box the Tribunal observes that he filled in his name as … yet he neglected to submit the information required by the form which requested him to give a reason as to why this name was used by him. When the delegate refused the PV application made by the applicant it appears from the Decision Record that the delegate was completely unaware that the applicant was the person called …. The delegate thought the applicant’s name was actually … and throughout the delegate’s decision he is referred to as ….
The Tribunal finds the confusion over the applicant’s true identity to be remarkable. The Tribunal finds that this confusion must be juxtaposed with its observation of the applicant’s inability to convincingly tell the Tribunal in the hearing what was his true date of birth. He claimed, in explanation of the confusion, that it was usual for him to consider his “lunar” birthday as his actual birthday. During the course of the hearing the applicant insisted to the Tribunal he was not …. When the applicant was asked at the hearing by the Tribunal to prove his identity to the satisfaction of the Tribunal he could not verify his claimed identification as he claimed his identity card was at home (in Sydney). He later submitted a (worn) China (PRC) ID card to the Tribunal as proof of his assertion (T1, f. 55). He also responded to questions about his claimed identity (following invitation pursuant to s.424A of the Act) unconvincingly. He insisted that the Tribunal’s duty was to verify his identity from the raft of conflicting information. The Tribunal finds difficulty (due to the conflicting evidence) in ascertaining the true identity of the applicant but he is apparently, from the whole of the evidence before the Tribunal, a China (PRC) citizen.
The Tribunal observes that the applicant claimed in a Statutory Declaration of claims that the passport he presented in the (claimed false) name of … was collated by and obtained from his accomplices when he was hiding from the PSB in Hainan sometime after 3 October 2006. Yet despite this the date of issue of his passport was 2005. The Tribunal put this observation of a discrepancy to the applicant pursuant to s.424A of the Act.
Initially the applicant had claimed thus:
Later on, with assistance of a friend, I had my name change to "… (date of birth: 16/02/1969)" and got a passport in my new name.)
In the hearing, the Tribunal had previously asked the applicant who had organized his (claimed false) passport:
He was asked who had organized his visa. He said that he had no idea - it was Chen’s relative. He had tipped the Chen family off about what happened to Chen in jail. They did not want the passport back. He said they asked for passport photos when he was in Hainan and he did not know what happened after that.
The applicant responded to the Tribunal’s most recent invitation to comment by stating that, in fact, he:
“found that I got a new name “…”.
The Tribunal can only conclude that though he had indicated previously that he had been actively involved with other (unnamed) persons in organizing his new (claimed false) passport in 2006 in Hainan now he had changed his story so as to suggest that instead of being involved in his new identity creation the accomplices presented him with a new name as a fait accompli.
The Tribunal as part of its investigations further observed that the passport which he (correctly) claimed was issued to him in Hainan and which he used to flee China (PRC) was actually issued on 7 June 2005 which is prior to any of the events which are the basis of his refugee claims. The passport details are to be found on the Tribunal file as the applicant provided the Tribunal with his passport document before the hearing. The Tribunal observes from his evidence that the persecutory events, which form the basis of his claims, all occurred in 2006 and he obtained the passport from his accomplices when in Hainan after fleeing his claimed persecutors. The Tribunal asked the applicant to explain this discrepancy (pursuant to s.424A of the Act).
He explained that:
“the person, who had organised my trip to the overseas, had to not only guarantee my smooth departure from China but also ensure their own safety. I think that having date of issue for the passport changed from October 2006 to June 2005 and putting some exit or entrance stamps on the passport must have been for the above-mentioned purpose”.
The Tribunal cannot envisage what possible difference it would make to the use of a (claimed false) passport whether the date of issue was 2005 or 2006. The Tribunal does not accept that the explanation of the applicant for the discrepancy in the dates cited (his accomplices’ claimed safety initiatives) is plausible or convincing.
The Tribunal has previously established that the manner in which the applicant has attempted to establish his real identity when applying for the visa (the subject of this review) and the processing of his application has been unsatisfactory and confusing. He has subsequently contradicted the manner in which his (claimed) false passport was obtained for the purposes of fleeing China (PRC). Furthermore, his explanation for the discrepancy between the date of issue of his (claimed) false passport and the date of the claimed persecutory incidents that form the basis of his refugee claims is implausible and unconvincing. These observations lead the Tribunal to find the applicant to be an unreliable witness and a person of poor credibility. (emphasis in original retained)
The Tribunal went on to find, given its adverse credibility finding, that the applicant’s claims of having suffered persecution in China were not to be believed. Apart from the issue of the applicant’s identity, the applicant’s claims are dealt with by the Tribunal in two paragraphs as follows[21]:
For the above reasons the Tribunal does not accept the applicant’s claims of persecution and by the China (PRC) authorities as valid. The Tribunal does not accept that the applicant was detained and tortured and humiliated for engaging in protest activities regarding unpaid wages and was generally mistreated and monitored by the China (PRC) authorities as a person of adverse interest. The Tribunal finds the claims are an elaborate fabrication to give credence to his claims to be a refugee from persecution in China (PRC) and a person who should be granted a Protection visa. The Tribunal is not satisfied, when the applicant’s claims are juxtaposed with his own unreliability as a witness that any of the applicant’s claims made to the Department and Tribunal can be believed. The Tribunal is not satisfied that the applicant was ever persecuted. Nor is it satisfied that he ever had or has a well-founded fear of persecution for a Convention-related reason.
The applicant has claimed to still be the subject of an arrest warrant and to be a person of continuing adverse interest to the China (PRC) authorities on account of his activities outlined in his claims. The Tribunal does not accept this claim because it does not accept his other claims of having been detained, tortured and harassed by the China (PRC) authorities which are the claimed basis for the claimed adverse interest in him. The Tribunal finds that, as it does not accept the applicant’s claims to be a persecuted China (PRC) citizen, that chance of him being a person of adverse interest to the authorities - were he to return to China (PRC) in the future – is remote.
[21] GB 111-112
It is striking that the Tribunal’s reasoning on the issue of credibility fixes almost entirely on the manner in which the applicant dealt with his identity. The applicant was placed in something of a catch 22 situation as it is well known that country information commonly relied upon by the Tribunal states that persons of adverse interest to the Chinese authorities would encounter difficulty leaving China by regular means using their real identities. The implication is that a person who had been persecuted in China might need to use a false identity in order to leave the country. This applicant, in seeking to explain that he had used a false identity for that reason, found himself accused of identity fraud. That fact and the sense of hostility which permeates the Tribunal’s reasons led me to invite submissions on the issue of apprehended bias. Relevantly, the Minister submits as follows on this issue:
The issue in this ground is whether the cumulative effect of a number of observations and findings made by the Tribunal Member leads to the conclusion that the Tribunal’s decision was effected by a reasonable apprehension of bias. Those observations include:
· Reference by the Tribunal Member at GB110 to the applicant’s I.D. card being “worn”.
· The finding at GB110 that the Tribunal did not accept the applicant’s explanation relating to his evidence of varying birth dates.
· The findings about the false statutory declarations at GB110-111.
· The findings that the Tribunal did not accept the applicant’s explanation as to who organised the applicant’s passport at GB110-111.
· The reference by the Tribunal Member to the applicant’s agent by name, i.e. “Priscilla Yu” at GB101.
These matters considered cumulatively, it is suggested, lead to a conclusion that the Tribunal had a reasonable apprehension of bias.
In response to this the first respondent submits the Tribunal’s decision is not affected by any apprehended bias.
The general test for apprehended bias in the context of administrative proceedings such as those conducted by the Refugee Review Tribunal is succinctly reflected in the following passage from Justice Allsop’s decision in the Full Court of the Federal Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14]:
“The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision” (emphasis added).
The test for apprehended bias is an objective one: whether the fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the judge is required to decide; Ebner v Official in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]. In Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka (2001) 206 CLR 128 Kirby J gave the following guidance as to the nature of ‘reasonable apprehension of bias’ at [90];
...it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person "might" (rather than "would") entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be "firmly established".
It is important to appreciate that the relevant test is an objective test of possibility, not probability, as to what will be done or what might have been done. That was emphasised by the High Court in Re RRT; Ex parte H (2001) 179 ALR 425, where Gleeson CJ, Gaudron and Gummow JJ said at 434-435:
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. Whether or not that be an 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.
It must also be kept in mind that when assessing the position of a Tribunal Member in a private hearing he/she is in a different position than that of a judge in an open court. In NADH Allsop J made it clear that the test of reasonable apprehension of bias must be tempered by this distinction in the Tribunal’s function to that of a Court. At [19-20] his Honour said:
The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition ... Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness.
In other words, he or she does not have to come to the matter entirely neutral: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [179], [187].
Importantly for the present case, it is well established that bias, actual or apprehended, should not be inferred from adverse credibility findings, particularly where there is no complaint about the conduct of the Tribunal Member, nor any evidentiary basis for inferring a reasonable apprehension of bias from such conduct: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21].
Finally, in determining whether the Tribunal was biased in the present case, it does not involve the Court putting itself in the place of the Tribunal, deciding on the facts that it would have come to a different conclusion than the Tribunal did and then finding that this is what the hypothetical lay observer would have done, and therefore he or she would have thought that the failure to do so would have indicated a propensity or possibility of a mind that was not impartial. As Hayne J observed in Minister for Immigration v Jia (2001) 205 CLR 507 at [190]:
Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.
A review of the authorities where the courts have upheld a complaint of apprehended bias indicates that the test is a very strict one. They all depend, in some way, upon findings beyond the actual decision of the Tribunal and on findings specifically relating to the way the Tribunal Member conducted himself/herself at the hearing vis-à-vis the applicant, for example, in terms of the questions asked and answered at the oral hearing.
NADH was a case in which some strong documentary evidence in support of the applicant’s claims was dismissed by the Tribunal in a cursory manner on the basis of “vagueness”. This was found by the Full Court not to have been borne out either by the contents of the evidence or of the Tribunal’s description of those contents, or by the oral evidence given about those documents. Their Honours considered the Tribunal had acted perversely in its assessment of the applicant’s claims, amounting to apprehended bias.
In Re RRT Ex Parte H the High Court upheld a complaint of apprehended bias because the Court considered, on an examination of the transcript, that the Tribunal’s constant interruptions suggested the Tribunal had a preconceived view of the applicant’s account.
In VFAB v MIMIA the Full Court upheld a complaint of apprehended bias on the finding, based on a review of the transcript that the Tribunal had engaged in a belligerent style of questioning.
Finally, in SZEOQ v Minister for Immigration [2006] FCA 1171, Cowdroy J found that on an analysis of the transcript of the oral hearing the Tribunal Member’s questioning went beyond a vigorous exchange, and this, it was held, amounted to apprehended bias.
In the present case a fair reading of the transcript does not indicate that the Tribunal Member brought a closed mind to the applicant’s review application generally, or to the issue of his identity specifically, being the issue identified by the Court as being a possible foundation for a bias complaint relate to.
On the contrary it is clear that the Tribunal Member had real concerns about the applicant’s identity. It was genuinely confused about the applicant’s claimed identity, and gave the applicant many opportunities to explain himself on the issue. Ultimately it found the evidence of the applicant as to his identity was “unsatisfactory and confusing” (GB111). This was open on the evidence. There is nothing in the conduct of the hearing on this issue that would demonstrate the Tribunal Member had a closed mind.
A fair reading of the decision, in view of the transcript, would not suggest any pattern that would suggest to the hypothetical lay observer that the Tribunal had a closed mind. The applicant has not filed any evidence to support any bias complaint.
Taken individually each of the matters identified by the Court in this ground as tending to show bias were open on the evidence. Each finding was open on the material and evidence that was before the Tribunal. To the extent that the Tribunal made a specific reference to the applicant’s agent at the commencement of its decision, in the absence of any other evidence, does not suggest bias. It is simply a statement of fact.
A lay observer may well agree with some of the findings, but not all, for example, the finding that the Tribunal did not accept the applicant’s explanation as to who organised the applicant’s passport at GB110-111. Where a Court cannot be sure of the reaction of the hypothetical lay observer to one or more matters relied upon cumulatively to establish a bias complaint it would not be safe to make a finding that the Tribunal hearing was infected by apprehended bias.
In any event, ultimately the decision turned on adverse credibility findings. Any sense of unease about those findings is not sufficient to establish a reasonable apprehension of bias: Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Epeabaka at [90].
Save for the point that the test of apprehended bias is not whether the presiding member had a closed mind but whether a fair minded and informed person might reasonably apprehend that the presiding member might not have brought an impartial mind to bear upon the decision, I accept the statements of the relevant principles contained in the Minister’s submissions. However, in this matter I disagree with the Minister’s conclusion that no apprehension of bias is established from the available material.
First, the transcript discloses that the presiding member was taken aback, and was confused by the applicant’s assertions as to his identity. The applicant had answered some questions from the presiding member relying upon the personal details of the alleged false identity which were part of the reason for the confusion. This centred on the issue of birth dates. On page 5 of the transcript the presiding member is recorded as stating:
MR COOK: I asked you what your birthday was because I commented that you would have had another birthday because this is February, the last day of February today and your birthday, according to the document, was the 16th of February and according to the decision record you were 37 in December 2006. So therefore, because we are in February of 2007 and your birth date was 16th of February 1969 I suggested to you that you were 38. You said to me, no, that you were 39. So to confirm my information I asked you when your birthday was and you told me it was the 16th of February 1969 and then that information confirmed the information which is in both of these passport documents.
And despite the correspondence, my comments and the information in front of me you tell me that that is not your real name, your real name is …. Okay? And you tell me that this is not your document, this is the document of …. So I am completely confused now about your true identity. I am thinking to myself that this is your passport and this is your name and the fact that you have told me that your birthday is on the same date as the passport confirms my suspicion that this is your passport. So please give me an explanation as to why I should not believe this is your passport when you have just confirmed the same birth date? Okay. You don’t know the answer, or what?
THE INTERPRETER: I come to Australia with a passport in the name of …. Therefore I applied for the visa also in the surname of …. (emphasis added)
The applicant attempted to explain that he applied for protection using the false details in his passport because he was afraid of persecution in China should his real identity become known. The presiding member was unwilling to accept the proposition that a person seeking protection in this country would continue to use a false identity after arriving in Australia because of a fear of persecution. On page 6 of the transcript, the following exchange occurred:
MR COOK: ‑ ‑ ‑ my own name – no, that’s not the point I am making. Please listen to me. Just listen to me carefully. I know you are probably a bit nervous so just listen to me – listen to me carefully, please. It does happen that people forge Chinese documents. It does happen. Bribery, or some friend or something in the PSB. Apparently, you may be able to forge a Chinese passport. Okay? And the reason people do that is to avoid detection from the Chinese authorities to exit China. Okay? Now, that’s one thing. That’s one separate thing but if you are successful enough to arrive and go through the door into Australia and make an application for protection by saying, I’m a refugee, I have been persecuted in my country, I can’t go back there. It’s an application for protection, protecting you from being persecuted, right, tortured, detained, whatever. Under United Nations Law that applies in Australia that’s what the protection visa is. It’s the Australian way of saying, we want to protect you from harm. Okay? Do you understand that?
THE INTERPRETER: Yes, I understand.
MR COOK: That’s why you went to the department to make the application, to say to the Australian government, please protect me, protect me from the Chinese – the officials, the PSB, whoever, the corrupt officials, whoever it is that is persecuting you. Please protect me, Australian government. Let me stay in Australia. Right? That’s what you do when you apply for a protection visa. So you got in the door into Australia. You’ve gone through the airport. You are not in China any more. You are going to the Department of Immigration and you are making an application for a protection visa to be protected.
Okay? So why would you give the Australian authorities the wrong name? Why didn’t you just say, forget that passport. I’m not …, I’m …. That’s who I am. That’s who I really am. I forged that passport. That’s not me. That’s some other guy. It’s my photo but it’s not me. This is who I am and I am asking for protection? Why would you give them the wrong name? Now you are telling me but why didn’t you tell them?
THE INTERPRETER: I didn’t have that information in my documents.
There was further questioning about the applicant’s birthday and continuing confusion as between the applicant’s false and asserted real identities and confusion (so the applicant claimed) between lunar and calendar birthdays used in China. The following exchange is recorded on pages 10 and 11 of the transcript:
MR COOK: Okay. Well, according to your application the birth date of your wife is not the 22nd of September 1977, it’s the 9th of September, and the birth date of your son, which you said was probably the 16th of June 2003 is the 10th July 2003. So you do know the birth date – you do not know the birth date of your wife or your son?
THE INTERPRETER: You see, according to our custom, the custom of our home town, we have lunar birthday and the calendar birthday.
MR COOK: And that explains the difference, does it?
THE INTERPRETER: Yes.
MR COOK: So when I ask you what your birthday was, why did you give me the calendar birthday and not the lunar birthday?
THE INTERPRETER: At my home town, some people celebrate their lunar birthday and some people celebrate their calendar birthday. It depends.
MR COOK: No, you are not answering the question. Why did you give me - when I asked you your birthday you gave me your birthday using the calendar system, the international calendar system. Why didn’t you give me the lunar day?
THE INTERPRETER: When I was – this is the way how we celebrate, how I celebrate their birthdays. For example, my birthday is April something – according to the calendar birthday my birthday is April 21st. However, according to lunar birthday my birthday would be the 3rd of March.
MR COOK: So what is the real calendar date? What is your calendar birthday?
THE INTERPRETER: He asked me a question. He said, is it that calendar birthday means lunar birthday.
MR COOK: No, just the official international every day birthday. Please give that to me.
THE INTERPRETER: The world?
MR COOK: The one that everybody uses all over the world for their birthday; just give me that date. That was the day you were born.
THE INTERPRETER: 1977, April 21st.
MR COOK: But you told me before that you were born on the 16th February 1969.
THE INTERPRETER: That’s someone else now and …..
It then occurred to the Tribunal that the confusion might be resolved by observing the applicant’s Chinese identity card. The presiding member asked to see it. The applicant said that he did not have it with him and there followed an exchange about the applicant disclosing it. The Tribunal required the applicant to produce his Chinese ID card in order to settle the issue of his identity. There was a somewhat lengthy discussion about whether the applicant would need to produce the original or a photocopy and when that could be done. The Tribunal’s questioning was insistent. The following exchange is recorded on pages 12 to 15 of the transcript:
THE INTERPRETER: As I mentioned earlier, I was not dare to use my real name, otherwise I would have not been able to come to Australia. This is the reason why I went to Hainan. With the assistance of a friend of mine I get a name from somebody else.
MR COOK: I understand all that. That’s okay. Just as long as I can find out what your real name is because you have completely confused everybody by using your false name for your application when you should have used your real name, and you have used a false name to make an important statutory declaration. Yes, please tell the applicant that. That’s why I asked you the questions about who helped you to prepare your documents in Australia, because the documents have been prepared incompetently by these people. Because once you came to Australia you are supposed to declare who you are, right, the proper person.
Forget about China. There is no problem about China any more. There may be some reason why you changed your name to get out of China. That happens all the time. The point I am saying is when you prepare your documents in Australia they are supposed to be prepared correctly. So tomorrow, the first thing you are going to do tomorrow is what? You are going to get that plastic ID card and bring it into the tribunal, where you came today, and give it to the staff and tell them the member said to have that photocopied for the records on your file. Okay? And I will tell the staff to be ready to receive you. So will you do that tomorrow? Will you do that tomorrow?
THE INTERPRETER: Yes.
MR COOK: Yes. You will bring your plastic ID, the Chinese PRC ID. You know the one I am talking about? Do you know what I am saying? Yes? You seem to be a little bit perturbed. Why is this?
THE INTERPRETER: He said, now I’m working at Port Griffin.
MR COOK: So?
THE INTERPRETER: I came to Australia. However, I could not find a job in Sydney. Later on, I moved to Brisbane so I left everything there in Brisbane.
MR COOK: All right. So you came down from Brisbane today? Is that what you are saying? You came down from Brisbane today?
THE INTERPRETER: Yes.
MR COOK: Yes? And you go back to Brisbane tonight?
THE INTERPRETER: Maybe not.
MR COOK: When are you going back to Brisbane?
THE INTERPRETER: After a couple of days.
MR COOK: Well, when are you going to give me the document? You don’t have the document, do you?
THE INTERPRETER: I do have.
MR COOK: What is all the pause for? Why are you pausing when you are answering my questions? You seem to be uncertain. You are not giving me a straight answer.
THE INTERPRETER: Because I’m not sure when I will be able to give the document to you. If I promise you today and I won’t be able to keep my promise, that means ‑ ‑ ‑
MR COOK: No.
THE INTERPRETER: ‑ ‑ ‑ I am cheating you.
MR COOK: Fair enough, if you can’t do it – I just want to know when the document is going to arrive.
THE INTERPRETER: Next week.
MR COOK: Next week?
THE INTERPRETER: I’ll try my best to give you the document.
MR COOK: Well, put it this way. You are going to have some very serious problems if I can’t establish your identity. Okay? Please understand that. Nothing personal, but I am in a state of complete confusion about your identity. I suspect you may be telling me the truth but the documents tell me you are not. So please understand my situation. I’m just a logical guy, right, sitting here and two important documents have your false name. Buried in one document is your son’s name, which is the name you say you are – you claim – and buried in another document is a statement that you changed your identity.
They are the only things I can go on but if I can see that Chinese ID, the plastic ID, I will know you are telling me the truth. Now, you may – you want to make me hang around waiting for one week for you to get that document. I mean, I am not supposed to wait at your convenience. You are supposed to be at my convenience, okay – with all due respect. Why can’t you go back to Brisbane earlier? Could you tell me? Could you get someone in Brisbane to send the document?
THE INTERPRETER: I don’t know what the way here and I don’t know how long it will take if I send something by post.
MR COOK: Your friends – does anybody up there have access to your things?
THE INTERPRETER: No.
MR COOK: No. Your stuff is in a special place?
THE INTERPRETER: Yes. I left it at home.
MR COOK: Mm?
THE INTERPRETER: I put it at home. We all rent the room and each and every one of us we have our own room.
MR COOK: In the …..
THE INTERPRETER: Yes.
MR COOK: Okay. So you’ve got to be there yourself to access your documents? And you don’t plan to go back to Brisbane till next week? Is that right?
THE INTERPRETER: I do have plans.
MR COOK: When do you go back to Brisbane?
THE INTERPRETER: If time is enough I may travel back at night.
MR COOK: Okay. What I need you to do is to take the plastic identification and go with a friend or something to photocopy that document and I need that to be faxed to the tribunal, or posted to the tribunal. Can you do that? Can you do that for me in the next few days? Okay. So what we’ll do, madam interpreter, is that we will give you the fax number, right, and the address of the tribunal. Now, here is my next question: have you officially changed your address from Auburn to Brisbane on the tribunal register? No? You haven’t told them inside that you have changed from Auburn to Brisbane? Is that true? Okay. Well, you have to do that. All right? So when we have finished today I want you to go in there and do that. I want you to go in there and change your address. (emphasis added)
However, the Tribunal was dissatisfied with the photocopy of the applicant’s ID card that was sent to the Tribunal. In response to an invitation to comment issued pursuant to s.424A of the Migration Act the applicant provided his original Chinese ID card and invited the Tribunal to have it thoroughly examined[22]. It is not apparent that the Tribunal conducted any forensic examination of the original ID card provided, which, as noted above, was tendered in evidence before me[23]. The Tribunal simply comments in its reasons that the applicant submitted a “worn” China ID card as proof of his asserted identity. The fact that the ID card is worn (in the sense of being not new) ought to support a conclusion that the ID card is genuine. It is very surprising that, notwithstanding the statements by the presiding member at the hearing that production of the ID card would settle definitively the question of the applicant’s identity, when the ID card was produced, the Tribunal would not accept it as proof of identity, preferring to refer to a “raft of conflicting information”[24]. The Tribunal provides no explanation as to why, when at the hearing it emphasised that production of the ID card would settle the issue of identity, the production of the ID card did not settle that question. Further, the Tribunal does not explain why, if the Tribunal was unable to ascertain the true identity of the applicant, the Tribunal was able to find that the applicant had been involved in identity fraud.
[22] RD 80-81
[23] exhibit A1
[24] RD 110
In my view, a hypothetical fair minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the conduct discussed above might reasonably apprehend that the presiding member did not bring an unprejudiced mind to bear on the decision. When confronted with the applicant’s assertions as to his identity, the presiding member may have formed the view that the applicant had set out, with the assistance of his migration agent (Ms Priscilla Yu) to create confusion about his identity and that the applicant was not, and would not be, able to produce definitive evidence of his identity in the form of his Chinese identity card. When the applicant did produce what was demanded of him the Tribunal changed its approach. The Tribunal treated the identity card as simply part of the “raft of conflicting information”.
I have considered whether the Tribunal decision might be independently supported by the adverse credibility finding based upon the timing of the applicant obtaining a Chinese passport. The applicant was unable to satisfactorily explain why he obtained a passport in a false name prior to the asserted events of persecution that occurred. However, in the absence of any finding as to what the applicant’s real identity was, that finding cannot independently support the decision. If the applicant’s real identity was that shown in the passport the timing of obtaining the passport might not be of particular significance. However, if the applicant’s real identity was that shown on his Chinese ID card the timing of his obtaining a passport in a false identity might have supported a conclusion that the applicant obtained a false passport not to leave China but, rather, to enter Australia. However, the Tribunal did not approach the issue in that fashion, simply dealing with the issue of the timing of the passport as a further adverse credibility finding, without establishing the factual foundation that would have supported the adverse credibility finding.
Further, it is possible that what the applicant claims is true, namely that the false passport, although issued in 2005, was not given to him until after the alleged persecution occurred and he went to Hainan. That would be plausible if the passport was issued to a real person and later photosubstituted.
I conclude that in view of the apprehension of bias, the matter should be remitted to the Tribunal for a fresh hearing and decision. The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus.
As to costs, the applicant was not legally represented and has not incurred any legal expenses. He has paid to the Court the application fee of $350. I will order that the Minister reimburse the applicant for that fee. The setting down fee has been waived by the Court.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 October 2008
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