SZMOE v Minister for Immigration
[2009] FMCA 116
•3 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMOE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 116 |
| MIGRATION – RRT decision – apprehended bias from prejudgment – repeated warnings by Tribunal about general credibility – dubious adverse points made during questioning – possible effect on informed lay‑observer – jurisdictional error established – matter remitted. |
| Migration Act 1958 (Cth), ss.91R(3), 418(3) |
| Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264 Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SZMOE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1910 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 4 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 1 July 2008 in matter 0801661.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 February 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1910 of 2008
| SZMOE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant came to Australia on a tourist visa in February 2008, and very soon after his arrival he employed a migration agent to make a protection visa application. An attached statement claimed that he and his wife had taken up Falun Gong practice in 2002. They invited other people to join them, but in 2006 he was detained at his place of work by police. He was assaulted and mistreated for one week before confessing, and was then sentenced to jail for one year. When he was released in March 2007, he and his family were monitored, and he had been “fired by my factory in 2006”. He “only practiced Falun Gong at home with my wife under table”. He said:
I started to work on going overseas. As I could not get my passport from my city so I left my home and came to [another city] in October 2007.
In February 2008, with the help of a friend, I got an Australia visa. I left [that other city] directly to [place] Airport. I escaped from China.
A delegate refused the visa application on 20 February 2008. The delegate gave short reasons. She said that she was satisfied that:
if the applicant had been detained, interrogated, tortured and forced to sign a confession which resulted in a sentence of one year’s imprisonment it is very unlikely that he would have been able to depart the PRC legally using a passport that had been issued in his own name earlier in January 2008. … I do not find [sic: credible] his claim that he circumvented these matters simply by applying for a passport in another city.
The applicant appealed to the Tribunal, and attended a hearing on 16 May 2008. Prior to the hearing, his agent submitted three documents which appeared to be translations of three statements of identified witnesses, two of them corroborating the applicant’s arrest and sentencing in China, and one corroborating his practice of Falun Gong in Australia. At the hearing, the Tribunal was also given certified translations of three official Chinese documents. One was a “criminal writing verdict”, containing a judgment and sentence of the applicant “to a fix‑term imprisonment of 1 year. The term is from March 15, 2006 to March 14, 2007”. The other two certified his dismissal from a factory in April 2007, and that he had been arrested and released in March 2007 after one year of “labor correction” “for practicing Falun Gong and spread Cult”.
The Tribunal handed down a decision on 1 July 2008, which affirmed the delegate’s decision. The applicant now asks the Court to set aside the decision on the ground of jurisdictional error. He is unrepresented, but a solicitor to whom he was referred under the free legal advice scheme has drafted an amended application. This raises the contention that the manner in which the member constituting the Tribunal conducted the hearing and wrote her statement of reasons might give rise to a reasonable apprehension of bias by prejudgment. It submits: “a reasonable observer could have formed the view that the Tribunal was intent on finding any justification for not believing the Applicant’s claims, and did not have an open mind in the way it considered the evidence before it”.
This invokes well known principles which were explained by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 at [27]‑[32]:
27The 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.
28Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
29Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non‑curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
30Where, 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.
31Where, 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.
32In the present case, a fair‑minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair‑minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor’s application stood or fell with his, a fair‑minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
(citations omitted)
In the present case, I have carefully considered the full transcript of the Tribunal’s hearing, and have concluded that a fair‑minded lay observer might have found many aspects of the hearing which, cumulatively, suggested that the Tribunal member was not bringing an open mind to her investigation of the applicant’s evidence. Carefully considering the reasons subsequently given by the Tribunal, I have concluded that they would not have dispelled an apprehension that the Tribunal prematurely closed its mind to an impartial inquiry into, and assessment of, the applicant’s claims. Rather, the reasons are more likely to have confirmed the apprehension, since they might have suggested that the Tribunal member had used the hearing only to collect a series of perceived negative points, many of them dubious, upon which to justify a predetermined decision. I am not satisfied that, in fact, the member conducted the hearing with this state of mind, but it is not necessary for me to find actual bias.
The essential concern in the Tribunal’s conduct of the present hearing, is the concern identified by the High Court at [31] of Ex parte H. Their Honours identified the delicacy with which the Tribunal must conduct its questioning, so as to allow an unrepresented applicant a real opportunity to give evidence on the factual issues which will need to be addressed and decided. This requires, on the one hand, ensuring that the applicant is aware of the issues which will be decided, and, on the other hand, avoiding a manner or style of questioning which might appear unnecessarily intimidating and suggest a closed mind.
Where the credibility of an applicant’s claimed history of persecution is obviously a matter which is generally under review by the Tribunal in relation to all of its elements, there is no legal obligation on the Tribunal constantly to give special warnings about particular adverse points which might be identified in the applicant’s evidence when the Tribunal comes to decide the matter. In such a case, an applicant will be very aware that he or she needs to be believed when answering questions. The topics and framing of the questions will show the applicant the particular areas of his or her evidence which are being examined. His or her narrative can be fairly elicited, including by questions going to details and aimed at testing veracity, without interrupting the flow of questioning with general or specific warnings about what the Tribunal might ultimately think about the responses. Particular concerns can be raised by polite queries, without constantly reminding the applicant that he or she might be disbelieved. As in a court, questioning which repeatedly reminds a witness that their veracity is generally in issue might appear to be totally unnecessary and bullying. It might suggest that the Tribunal has adopted the role of an advocate seeking to advance the case against the applicant. If this happens, an appearance of bias might well concern an intelligent lay observer. Particularly, if the warnings do not appear reasonably justified by the responses which have prompted them.
These restraints on an inquisitorial procedure arising from the principle of apprehended bias were again emphasised in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, which explored the Tribunal’s duty to ensure that an applicant is aware of the issues it will decide. It is important to understand that a concern about apprehended bias explains the High Court’s general advice about this. This should not be overlooked when considering the implications of the particular outcome of that case. The Court said:
47First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. 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. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
48Secondly, 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 and trial by jury would have to be abolished.”
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.
(emphasis in original) (citations omitted)
Unfortunately, in the present case, the Tribunal member did not follow this advice. She adopted a practice of repeatedly telling the applicant that his responses “could raise doubts about the veracity of your claims and your credibility generally”. This happened at the end of nearly every line of questioning followed by the Tribunal, notwithstanding that the applicant’s responses which engendered the warnings were frequently reasonable, and not apparently untruthful or incredible in themselves. The warnings might well have appeared relentless and intimidating, and the accompanying invitations: “do you wish to comment or respond” might well have appeared formulaic and insincere. So too, might have appeared the Tribunal’s invariable, and unnecessary, comment after hearing a response: “I will consider that, thank you”. Other comments were made by the Tribunal which were unnecessarily dismissive and discouraging. By the end of the hearing, in my opinion, an intelligent lay observer might have apprehended that, in reality, the Tribunal might actually have decided that the applicant could not be believed, before receiving and considering all his evidence. By the end of the hearing, the observer might have concluded that there was nothing the applicant could have said during the hearing to alter this frame of mind.
I discussed with the Minister’s counsel whether these apprehensions might also have been fuelled by the Tribunal’s having received, before the hearing, a potentially prejudicial document which was in the documents forwarded by the Secretary as “relevant to the review of the decision”, pursuant to s.418(3) of the Migration Act 1958 (Cth). This was a letter to the Australian Embassy, presumably in Peking, from a Chinese travel agency seeking to excuse itself from the applicant’s failure to return to China in one of its tour groups. It suggested that the group had been arranged by the employer of the applicant’s sister, whom he had accompanied, and that their backgrounds had been fully checked. Despite the apparent relevance of these allegations, the Tribunal did not question the applicant about them, and did not inform him about the document at any stage in the proceedings. It subsequently disclaimed reliance upon the document in its statement of reasons, when saying:
There is on file (DIAC) material from a third party relating to the applicant. The Tribunal has not in any way used this material in any adverse manner to the applicant.
It is unnecessary to consider whether this approach to the document satisfied obligations to allow the applicant to answer adverse and relevant material from third party sources, in accordance with principles discussed in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 as modified by the current provisions of the Migration Act. However, the presence of this document in the material before the Tribunal should be assumed to be part of the knowledge of the notional ‘informed’ lay observer. The observer would be curious – and would remain curious after reading the Tribunal’s reasons – as to why obvious points raised by the document were not even touched upon in the Tribunal’s questioning of the applicant. I am inclined to think that the Tribunal’s approach to the document, at the hearing and subsequently, might contribute to an apprehension that a closed mind was brought to the hearing, but only in combination with other concerning aspects of the Tribunal’s questioning of the applicant at the hearing. Since I consider that these aspects in themselves give rise to apprehended bias, I do not need to examine this aspect of the case further.
My above conclusions as to the concerning aspects of the hearing arise from a consideration of all of the transcript of the Tribunal’s hearing, which is too long to include in this judgment. However, I must summarise the course of the hearing, and identify particular matters which explain my concerns. I shall refer to the ‘Tribunal’s usual warning’, rather than repeat the words which I have quoted above. These words were, indeed, repeated verbatim to the applicant, in warnings given at least ten times during a hearing lasting some two hours and occupying only 36 pages of transcript. As I shall indicate, other unnecessary warnings or doubts about his credibility were also expressed to the applicant. A Mandarin interpreter was used throughout the hearing, and the applicant was not accompanied by his migration agent nor any other person. Neither party asked me to listen to the sound recording, and it is not in evidence before me.
Pages 1 to 3 of the transcript contain the Tribunal’s usual introductory speech. Pages 3 to 4 contain a rebuke by the Tribunal to the applicant, for giving the hearing officer “a lot of documents that are being photocopied now. You were told to provide documents by a certain date not just before the hearing”. The applicant said that his migration agent had faxed some of them previously, and had told him to bring the others “in case the fact they don’t go through the fax”. This did not mollify the Tribunal member, who said: “Anyway, we will move on but I just wanted to say to you, Mr [applicant], that when I ask you to provide information it is very important to do it by the time requested”. The applicant added: “Because I didn’t know the procedure”. The Tribunal said: “Yes, well, I will think about that”.
The Tribunal’s refusal to acknowledge reasonable explanations at this point and later might, to an observer, have appeared unreasonable and intimidating. Because this happened frequently throughout the remainder of the hearing, it might have contributed to the development in an observer of an apprehension that the Tribunal did not have an open mind when receiving the applicant’s evidence. Moreover, the Tribunal proceeded to question the applicant without having looked at the small number of documents which were then in front of it. It did not even look at them when the applicant referred it to their contents (see transcript pp.11, 21, 30). It first looked at them at the end of the hearing.
On pages 4 and 5, the Tribunal started by questioning the applicant about how he had made his visa statement. One of his responses was, as the interpreter told the Tribunal, an incomplete sentence. This resulted in a second rebuke to the applicant: “Incomplete. Mr [applicant], I am asking you very simple questions. These are not difficult. Could I please also ask you not to raise your voice too much because there are hearings going on on both sides of me and it could disturb them”.
From pages 6 to 9 the Tribunal questioned the applicant about how he had commenced to practise Falun Gong. He gave the name of the person who introduced him to it, and said he had practised “in our little residential compound, small compound and at my own home”. He was asked whether he practised anywhere else, and said: “I think someone else’s home”, and gave the name of D. He said: “Very rarely with others because it is banned in China”. Without any apparent reason, the Tribunal told the applicant that his evidence was ‘incoherent’ and then, for the first time, gave its usual warning as to his general veracity. I shall extract this exchange in full, but not the later exchanges giving rise to the usual warning.
MEMBER: Mr [applicant], you told me earlier that sometimes you practiced with others. Who were these others and when did you practice with them?
INTERPRETER: Evenings. Usually we did in the evenings.
MEMBER: Mr [applicant], your evidence is incoherent. Could you please tell me – Mr [applicant], please don’t interrupt me when I am talking. Thank you. Mr [applicant], what I am asking you is to explain to me if you practiced with anyone else apart from the Mr D you told me about?
INTERPRETER: Most of the time just us. Very rarely with other people.
MEMBER: You said earlier that sometimes you practiced with others. Now you are saying very rarely. I don’t understand?
INTERPRETER: Sometimes means rarely. If it is a lot then it is not sometimes.
MEMBER: Hang on a minute. Sorry. Sometimes means rarely.
INTERPRETER: Sometimes means rarely. If it is a lot then it is not sometimes.
MEMBER: Mr [applicant], your responses so far about this question have been unclear, vague, lacking in details which could raise doubts about the veracity of your claims and your credibility generally. Do you wish to comment or respond?
INTERPRETER: So just now I said sometimes as opposed to often and I don’t [sic: know] if, Member, whether you can understand it or not. For me sometimes means rarely in terms of number of times. If there are a lot of times then I wouldn’t say sometimes. Then it is often.
MEMBER: I am asking you to explain, Mr [applicant], when did you practice Falun Gong with others than Mr D, the one you were telling me about? When did you practice it with other people?
INTERPRETER: I don’t remember dates because it didn’t happen often.
MEMBER: I am not asking you to give me the exact dates. I would like to have some idea?
INTERPRETER: Are you asking names or - - -
MEMBER: I am asking for when you practiced with others?
INTERPRETER: Hard to say.
MEMBER: I will consider further your explanations, thank you. Who were the other people that you sometimes practiced with?
I consider that an observer would have thought that a warning about general veracity was unnecessary at this point in the hearing, and the grounds upon which it was given might have appeared to be so weak as to be spurious.
The applicant then gave the names of two people, and said that there were “no others”. The Tribunal asked him: “How come you don’t mention any of those names in your statement, Mr [applicant]”. It then gave him the usual warning because “you do not mention any of those names”. He pointed out that he had presented a statement from D (transcript page 11).
From pages 12 to 16, the applicant gave what, to an observer, might appear to be a rational and possibly credible account of his wife suffering a protracted period of depression after the birth of a child, and how they had come to commence Falun Gong practice. The Tribunal said that it had difficulties being satisfied that he would take her to practise activities which were unlawful. He said: “We had no other choice because we had been to many hospitals. No effect in their treatment. We went with the attitude of just give it a try”.The Tribunal made no other comments about this evidence. I do not consider that an informed observer would have had any particular concern about this part of the questioning, although the applicant might have found it unsettling.
At pages 16 and 17, the Tribunal questioned the applicant as to how often he had distributed Falun Gong leaflets in the evening. He said: “Not regularly. Not like every 10 days or every 20 days”. The Tribunal then gave him the usual warning, because of “the lack of details, the vagueness in your responses in relation to the distribution of the leaflets”. I consider that an observer would consider that it was unreasonable and unnecessary to suggest to the applicant that his response raised doubts about his credibility generally. The applicant’s response appears reasonable and understandable. At this point in the hearing, the observer might have started to wonder whether the Tribunal, in fact, had an open mind to the consideration of rational and reasonable answers to questions.
Immediately after this, the Tribunal again gave the applicant its usual warning because his claim to have distributed leaflets had not been made in writing, but in the course of the hearing. The applicant said: “I don’t think it is necessary to put everything in a statement ... If I had write down everything then how much writing would that be”.
From pages 18 to 21, the Tribunal questioned the applicant about his detention and imprisonment. It gave him its usual warning because he could not remember the date when he was sentenced. The Tribunal said: “I will consider your explanations. You have not provided any court documents about your sentencing”. The applicant pointed out that he had a sentencing paper which was “in that pile”. It did specify the date of sentencing. The Tribunal said: “I will look at this document in a minute but let’s talk about what you were telling me before. So when you were released were you given any documents by the Chinese authorities about your release?” The applicant pointed out that this was “also submitted”, and the Tribunal changed the topic of its questions. It gave no acknowledgement of these reasonable responses, nor that its warning had been unfairly given.
At page 23, the applicant said that the police had come to his home “to see whether I am still practicing” after his release, and had done so “soon after my release … not too long after my release but as for exactly the date, I can’t tell you exactly”. An observer might well think this was a credible answer, and not deserving of the usual warning which the Tribunal then gave because “you are unable to give me details about when the police allegedly went to your home”.
On the next page, the usual warning was given because the applicant could not tell the tribunal “exactly when” he was fired and had said that this was in 2007 “after my release” and not 2006. At this point in the hearing, it might have appeared to an observer that the Tribunal might be conducting its questioning with the intention of looking for points upon which to discredit the applicant.
The Tribunal then changed the topic, and put to the applicant that “people who are of an adverse interest to the Chinese authorities generally have difficulties in both obtaining their passport and in leaving China”. The applicant explained that he had gone to another city and bribed officials to get his passport, and “once you get the passport and when you leave the country they basically don’t worry about you any more”. However, the Tribunal gave its usual warning because “you exited China without any difficulty”. It said: “I am fairly confident, Mr [applicant], that those who are of adverse interest to the Chinese authorities generally have difficulties in both obtaining their passport and in exiting China but I will think about that”.
These points were relevant to a consideration of the applicant’s claims, but they were put to the applicant in a manner which might have appeared intimidating and discouraging to the applicant. For example, after the Tribunal made confident statements to the applicant about how people leave China, he said: “You want me to say something?”, to which the Tribunal said only: “If you would like to?”
At page 25 the Tribunal abruptly commenced a viva voce test of the applicant’s knowledge of Falun Gong history, literature and practices. This started with: “what is the significance of 25 April?” The applicant said: “I don’t know what 25 April means. I don’t remember”. He did know that 13 May was Master Li’s birthday, and that “he decided it to be Falun Dafa day worldwide”. However, the Tribunal gave the applicant its usual warning because “you were unable to tell me about a very significant date like the 25th and you were only able to tell me partly about the significance of 13 May”. It told the applicant that 25 April was the anniversary of a protest of 10,000 practitioners in Beijing, but did not explain why the applicant should have immediately known this. The Tribunal told the applicant that it also “raises serious doubts” about his claim to be practising Falun Gong in Australia. The applicant said: “I don’t think it is possible for one to remember everything”. He said: “I think there are many people who can’t even remember their own birthday”. The Tribunal gave only an equivocal acknowledgement of this reasonable observation, by saying: “I am not expecting you to know things or about things that you haven’t claimed … Let’s move on. Okay. Is there anything else you want to say, Mr [applicant]?”. The applicant said: “No”.
I consider that an observer might at this point apprehend that the applicant had become discouraged from thinking that the Tribunal was inquiring into his case with an open mind. The observer might have thought that, although the applicant appeared to be an articulate person of strong character, even such a person might have been discouraged by the Tribunal’s continual warnings about general veracity and its apparently dismissive attitude towards reasonable responses.
The Tribunal then on pages 27 to 30, tested the applicant’s knowledge of Falun Gong further. The applicant answered all questions correctly concerning the five exercises, and the main text of Falun Gong. Compared to many such examinations conducted by the Tribunal, the applicant showed a good comprehension of this background. However, he was told several times: “I need to think very carefully whether you have learned that for the purposes of the hearing”. The Tribunal might appear to have taunted the applicant at the end of this questioning:
MEMBER: … When was Zhuan Falun published?
INTERPRETER: It was around end of 1995, I don’t remember the exact date.
MEMBER: The information I have suggests that it was first published in 1994. If you have read it you would know that, wouldn’t you?
INTERPRETER: To my knowledge it was 1995 at the end but don’t remember the month. Maybe end.
MEMBER: I will consider that, thank you. …
From page 30 the Tribunal said that it would “go through” the documents the applicant had brought to the hearing, and he was asked to explain one of them. He was then invited to comment upon the proposition: “After consideration of the evidence as a whole I may not be satisfied that the information contained in the document is true or accurate or correct”. Understandably, the applicant had no comment.
Nor at pages 31 and 32 was the applicant able to understand or comment upon the Tribunal’s attempt to relate the terms of s.91R(3) of the Migration Act and its significance for his attendances at Falun Gong practice in Australia. However, an informed observer would probably understand that this was the result of the awkward drafting of that section.
The applicant, understandably, also had no comments to the Tribunal’s repeated statements concerning each of the other documents, that it would “further consider whether this document is genuine and/or authentic. I will further consider if the document contains a truthful and/or accurate information. Do you wish to comment or respond, Mr [applicant]”.
The hearing concluded with this exchange:
MEMBER: … Now, Mr [applicant] I have nothing else to ask you. I have discussed a number of concerns with you in the course of the hearing. I have not made up my mind either way and I can assure you of that. Is there anything you want to say, Mr [applicant]?
INTERPRETER: Nothing.
MEMBER: As I mentioned in the beginning of the hearing, you are entitled to seek additional time to comment on or respond to the information that I have given you today in the course of the hearing – please let me finish my sentence and then comment – that I consider could or would be a reason for affirming the decision to refuse you a visa. Do you need more time to comment on or respond to the information, Mr [applicant]?
INTERPRETER: You mean more time to let me say something?
MEMBER: Well, you can say something. You can say whatever you like.
INTERPRETER: I think I have said pretty much what I want to say. No need.
MEMBER: No need for any more time?
INTERPRETER: But, Ms Member, whatever you have asked I have given you the answer.
MEMBER: And I am giving you a last opportunity to say anything else that you would like to say.
INTERPRETER: So what I want to say is I genuinely ask the Australian Government and Ms Member give me protection, give me help.
MEMBER: I will consider that very carefully, Mr [applicant]. …
I accept that the Tribunal allowed the applicant opportunities at the end of the hearing to say whatever he wished to say. Also that it properly indicated that it would consider his evidence. However, in view of the earlier conduct of the hearing, I do not consider that this ending would have allayed the apprehensions of a detached observer that the applicant might have become discouraged from fully putting forward his case because he had earlier formed the impression that the Tribunal was conducting only a charade of a hearing.
Nor, as I have indicated, do I consider that the Tribunal’s statement of reasons would have allayed the apprehensions of the hypothetical observer. If anything, they might have confirmed those apprehensions.
In its “Findings and Reasons” the Tribunal said:
In the course of the hearing the applicant was unable to provide a coherent, consistent and detailed account of his claims which raised serious doubts about his credibility and the veracity of his claims. Specifically the Tribunal has the following concerns.
These were:
·the applicant’s responses that he practised with people other than D “sometimes” and “rarely” were “vague and lack details, raising doubts about the veracity of his claims and his credibility generally”;
·his not mentioning the names of the people in his visa statement “could also raise doubts about the veracity of his claims and his credibility, as it could suggest fabrication”;
·the Tribunal was not “convinced” by his account of taking his wife to practise Falun Gong;
·his responses about distributing leaflets were “vague and lacking in details and … the lack of details raise doubts about the veracity of his claims and his credibility generally”. So too did the lack of mention of this in his visa statement;
·the fact that the visa statement said that he was released in “March 2007” without reference to the specific date “raises doubt about the veracity of his claims and his credibility generally”;
·so too did the fact that “he does not recall when he was sentenced”, and “could not tell the Tribunal exactly when” the police came to his home after his release;
·“the inconsistency and lack of details about when he was fired, raise doubts about the veracity of his claims and credibility generally”;
·“the fact that he was able to depart China lawfully using his own passport raises doubts about the veracity of his claims and credibility generally”; and
·“The 25 April is an important date that is commemorated by foreign based practitioners and the Tribunal is of the view that given his claims that he had practised in Australia, the fact that he did not know the significance of that date (he was already in Australia) raises doubts about the veracity of his claims and his credibility generally”.
The Tribunal said that it was satisfied that “he has fabricated his claims in order to bolster his application for a protection visa. In totality, the above evidentiary concerns impugn the applicant’s credibility”. It said that the applicant’s documents “do not overcome the Tribunal’s concerns about the applicant”, and that although “the applicant has some knowledge of facts relating to Falun Gong; given the credibility concerns, the Tribunal is satisfied that the applicant has learnt those details to bolster his claims”. It therefore did not accept any of the applicant’s claimed history in China, and disregarded his Falun Gong activities in Australia.
I accept the submission of counsel for the Minister that this is not a case where unreasonable or irrational reasoning by a Tribunal in its statement of reasons provides evidence that the Tribunal never considered the matter with an open mind (cf. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264). Although the Tribunal’s reasoning is not persuasive, it was open on the material before it, and not entirely irrational or perverse. I would not have found the ground of apprehended bias to have been established only upon a reading of the statement of reasons. However, in the light of my findings about the hearing, it is enough for me to find that the Tribunal’s reasoning would not have allayed the apprehensions of a lay‑observer, who was informed about how the hearing had been conducted.
In my opinion, an informed lay‑observer, after considering the course of the hearing and the Tribunal’s subsequent statement of reasons, might well have concluded that at the hearing the Tribunal was concerned only to arrive at and note down a series of points which the Tribunal believed would justify its finding adversely against the applicant’s general credibility. The observer might have concluded that the Tribunal believed that this approach was permissible if formulaic warnings about general veracity and invitations to comment were repeatedly given. The observer might have formed an apprehension from this approach that the Tribunal might not have brought an open mind to the conduct of its review, at a time when the law required it to be, and appear, impartial.
I am therefore satisfied that the ground of apprehended bias has been made out in this case, and that the applicant is entitled to have the matter remitted for a full reconsideration by the Tribunal.
I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 3 March 2009
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