SZTFV v Minister for Immigration

[2014] FCCA 996

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 996

Catchwords:

MIGRATION – Review by Refugee Review Tribunal (Tribunal) – whether Tribunal’s decision affected by reasonable apprehension of bias – whether bias may be inferred from reason of Tribunal’s decision – no apprehended bias – application dismissed.

Abebe v Commonwealth (1999) 197 CLR 510
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Hamod v State of New South Wales (No.11) [2008] NSWSC 967
Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570
SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZSNU v Minister for Immigration & Anor [2013] FCCA 1219

First Applicant: SZTFV

Second Applicant: SZTFW

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2060 of 2013

Judgment of: Judge Manousaridis

Hearing date: 14 February 2014

Delivered at: Sydney

Delivered on: 16 May 2014

REPRESENTATION

Solicitors for the Applicants: Mr McArdle

Counsel for the Respondents: Mr Cleary

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2060 of 2013

SZTFV

First Applicant

SZTFW

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicants claim the second respondent (Tribunal) conducted a review of a decision of the delegate of the first respondent (Minister) not to grant the applicants a protection visa in a manner that gave rise to a reasonable apprehension of bias.

2. Before I consider the applicants’ claim of apprehended bias, it will be necessary to set out some of the legal principles that must be considered when claims for apprehended bias are made against the Tribunal, the claims for protection the applicants made before the Tribunal, and the Tribunal’s reasons for rejecting those claims.

Principles

1. I identified in SZSNU v Minister for Immigration & Anor[1] some of the principles that a court must consider when it is claimed that the Tribunal has conducted itself so as to give rise to a reasonable apprehension of bias; and I will not repeat here everything I said in that case, other than the following.

   [1] [2013] FCCA 1219

2. First, there is a rule, known as the apprehension of bias principle, which prohibits the Tribunal from conducting itself in a way that gives rise to an appearance of bias.

3. Second, there will be an appearance of bias if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.

4. Third, the words “fair-minded”, as used in the formulation of the apprehension of bias principle, “should be recognized for the central part they play in the assessment” of whether the principle has been breached.[2]

   It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power. [3]

   [2] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2] (Allsop CJ)

   [3] [2013] FCAFC 80 at [3] (Allsop CJ)

5. Fourth, there are a number of principles that may need to be borne in mind when considering whether the Tribunal in any given case failed to comply with the apprehension of bias principle. These include the following:[4]

   a)“[r]obust and forthright testing of the appellant’s claims by the Tribunal . . . does not sustain a finding of apprehended bias”;[5]

   b)although the Tribunal is not required to continually disclose its reasoning, “it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies”;[6]

   c)the difficulty in any given case “is to identify those cases in which a decision-maker is expressing tentative views . . . . as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind”;[7] and

   d)ultimately all cases where a reviewing court has to determine whether the Tribunal’s conduct gives rise to an apprehension of bias involves the striking of a balance “between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived”.[8]

   [4] These principles are stated or referred to by Flick J in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

   [5] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24] being a quote from the reasons of judgment of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]

   [6] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27]

   [7] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27]

   [8] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [33]

The applicant’s claim for protection

1. The first applicant (applicant), a national of the People’s Republic of China, claimed in a statutory declaration she submitted with her application for a protection visa that she feared persecution if she returned to China. She claimed she feared persecution because she was a Christian, and because she was pregnant to her former boyfriend who had abandoned her, thus exposing her to a forced abortion.[9] The applicant also claimed fear of persecution of her then unborn child (who now is the second applicant) if her pregnancy were not to be aborted because the child’s livelihood would seriously be threatened.[10]

   [9] CB40, [1]; CB44, [17]

   [10] CB40, [1]; CB44, [17]

2. The applicant’s claims were based on the following asserted facts:

   a)In 2005 the applicant began to attend secret meetings of the underground church in Fuzhou, and she was baptised in December 2005. The applicant was introduced to the church by a teacher named “Teacher Lin” at the school the applicant had earlier attended, and by the teacher’s cousin.[11]

   [11] CB40, [2]

   b)On 14 March 2006 the applicant went to South Korea where she studied fashion design and also attended the Korea Christian Presbyterian Church.[12] In 2007, the applicant “evangelised” to another Chinese national, Ms Zhang, and introduced her to a “lot of church brothers or sisters”.[13]

   [12] CB41, [3]

   [13] CB41, [4]

   c)In around June 2007 the applicant became aware that the persons who had introduced her to the church left Fuzhou because they were suspected by the local authorities of spreading illegal religious beliefs and ideology; the teacher also resigned from his position, and the cousin closed the restaurant he was operating.[14]

   d)In April 2009, after completing her studies in South Korea and commencing work at a factory in that country, the applicant married Mr Kim, a person she met in Korea.[15]

   e)On 30 April 2009, she returned to China, and worked in Shenyang City.[16] In Shenyang City the applicant attended a secret meeting of the underground church. The persons who attended the meeting were short of Bibles.[17]

   f)During 20 to 26 May 2009, while the applicant was in Macau, she purchased ten Bibles which she secretly brought back to China, and gave them to the underground church in Shenyang City.[18]

   g)The applicant returned to Korea on 21 June 2009. She left Korea on 17 August 2009 and arrived in Australia on 18 August 2009.[19]

   h)On 14 June 2010, the applicant left Australia and went to Korea with the intention of purchasing another ten Bibles and taking these to China. The applicant cancelled her plan because her husband suddenly fell ill. The applicant, however, purchased ten Bibles which she gave to her friend, Ms Wu, to take to China, and the applicant returned to Australia on 3 July 2010.[20]

   i)On her return to Australia, the applicant’s relationship with her husband deteriorated resulting in her husband turning the applicant away from where they lived.[21]

   j)In April 2011 the applicant began a relationship with a young man. In July 2011, that man left the applicant. In August 2011, however, the applicant discovered she was pregnant.[22]

   k)On 12 October 2011 the applicant was informed by Ms Wu that the underground church in Shenyang City had been destroyed, that her teacher and his cousin and some members of the underground church had been arrested, and that the applicant’s relationship with her teacher and others had come to the special attention of the Chinese authorities, and that the police had found out about the applicant’s providing Bibles to the underground church.[23]

   l)The Public Security Bureau (PSB) in Fuqing subsequently investigated the applicant’s father, and the police had investigated the applicant’s brother and two sisters.[24]

   [14] CB41, [5]

   [15] CB41, [6]

   [16] CB42, [7]

   [17] CB42, [8]

   [18] CB42, [9]

   [19] CB43, [10]

   [20] CB43, [11]

   [21] CB43, [12]

   [22] CB43-44, [13]-[14]

   [23] CB44, [15]

   [24] CB44, [16]

The applicant’s claim before the Tribunal

1. Before the Tribunal, the applicant was asked questions about a number of matters. These, included the following:

   a)The applicant’s living arrangements.[25]

   [25] CB160, [7]

   b)The applicant’s contacts with family members in China.[26]

   [26] CB160, [7]

   c)The applicant’s sister’s circumstances in Australia.[27]

   d)The applicant’s last contact with her husband.[28]

   e)The applicant’s ongoing contact with members of the underground church.[29]

   f)When the applicant first started attending underground church meetings.[30]

   g)Whether the applicant felt at risk by bringing Bibles into China.[31]

   h)Whether the applicant’s child had been baptised.[32]

   i)Why the applicant believed she would be of interest to Chinese authorities if she returned to China, as she had brought Bibles into China in 2009 and members of the underground church were arrested in 2011.[33]

   j)The applicant’s rare visits to China after she had joined the Church, and the unlikelihood that this gave rise to the applicant maintaining any contact with church members and hence come under the attention of any authorities.[34]

   k)The steps the applicant took to register her child in China.[35]

   l)Issues the Tribunal had regarding the applicant’s case, namely, the applicant’s being married at the time she had her child, and hence her looking into the possibility of not being liable to pay any social compensation fee,[36] and the applicant’s delay in applying for a protection visa after she entered Australia.[37]

   [27] CB160-161, [8]

   [28] CB161, [10]

   [29] CB161, [11]

   [30] CB161, [12]

   [31] CB161-162, [13]

   [32] CB162, [14]

   [33] CB162, [16]

   [34] CB162-163, [18]

   [35] CB163, [20]

   [36] CB164, [24]

   [37] CB164-165, [26]

2. The applicant provided further information and submissions after the hearing on a number of matters including the following:

   a)The reasons the applicant did not disclose that she was living with her sister.[38]

   b)The PSB had threatened her family in early July 2013.[39]

   c)Reasons why she did not maintain contact with the underground church in China.[40]

   d)The applicant’s parents’ knowledge of the treatment of the applicant’s teacher.[41]

   e)The reasons why the applicant did not fear risk of bringing Bibles into China from Macau.[42]

   [38] CB147; CB165, [28]

   [39] CB148; CB165, [29]

   [40] CB148; CB165, [29]

   [41] CB148; CB165, [30]

   [42] CB149; CB165, [31]

The Tribunal’s reasons

1. The Tribunal found the applicant was not a credible witness.[43] That finding was based on what the Tribunal found was “the applicant’s inconsistent and evasive answers”.[44] The Tribunal referred to four examples of such evidence. The first was the applicant, when initially asked of her living arrangements, not mentioning that she lived with her sister, and the evidence the applicant gave for not mentioning that fact.[45] The second example was what the Tribunal found was the applicant’s unwillingness to provide basic information about when she last had contact with her husband.[46] The third example concerned the applicant’s evidence in response to the Tribunal’s question of whether the applicant’s child had been baptised.[47] The fourth example was what the Tribunal found to be contradictory evidence the applicant gave about how she was kept informed by her family about her teacher.[48]

   [43] CB171, [43]

   [44] CB171, [43]

   [45] CB171-172, [43]

   [46] CB172, [44]

   [47] CB172, [45]

   [48] CB172-173, [46]

2. Although the Tribunal acknowledged that the issues about which the Tribunal found the applicant gave inconsistent and evasive answers “may not necessarily be the key issues in the matter”, the Tribunal was of the view that this evidence showed that the applicant “did not provide full, frank and honest evidence”, and that that raised issues about “the applicant’s evidence and credibility more generally”.[49]

   [49] CB173, [47]

3. The Tribunal then made the following findings in relation to the essential factual elements of the applicant’s claims:

   a)The Tribunal did not accept the applicant’s evidence that she took ten Bibles into China from Macau in 2009, or that she gave her friend ten Bibles to take to China from Korea. The Tribunal found there was a contradiction in the applicant’s evidence in that she had earlier claimed the underground meetings in China were secret, yet she did not feel at risk in taking Bibles into China to give to the underground church.[50] The Tribunal was therefore not satisfied the applicant is of any interest to the Chinese authorities.[51]

   b)The applicant did not establish her claims that she would be targeted by the Chinese authorities due to her close relationship with her teacher and friend Ms Zhang. The Tribunal found it “fanciful and implausible” that the applicant would be closely associated with Teacher Lin, his cousin, her friend Ms Zhang or any of the other church leaders or members given the time she has spent outside China since 2006.[52] Although the Tribunal acknowledged that the Chinese authorities are fearful of people returning from overseas because they can spread religion, “based on the applicant’s lack of generally [sic] credibility the Tribunal [was] not satisfied that this is true”.[53]

   c)The Tribunal had “doubts” about her claims that she was an active member of the underground church, and that she would continue to be involved with that church if she was to return to China.[54] The Tribunal, however, gave “the applicant the benefit of the doubt, despite its’ [sic] concerns regarding her credibility, and find that she was involved with an underground Christian church in China and that it is likely that she will continue to be involved with the Christian Church if she was to return to China”.[55]

   d)Nevertheless, the Tribunal did not accept the applicant was involved with the church to a high level when she was in China, or that she had provided Bibles, or that she would come to the attention of the Chinese authorities. That was “due to lack of evidence, apart from the applicant’s own evidence which the Tribunal does not accept due to lack of credibility”.[56]

   e)Country information did not establish that Christians in Fujian suffer serious harm or persecution due to their religion.[57]

   f)The Tribunal was not satisfied that the applicant would be forced to pay a registration fee on account of the birth of her child, even if the father of the child was not her husband.[58] The Tribunal based this finding on the applicant’s evidence that she had contacted the Chinese consulate who advised her that it would cost $50 to register the child; yet the applicant had not yet done that, and had given no evidence about the Chinese authorities requiring her to pay any other fee. Further, the Tribunal said that it could not be assured that the applicant’s husband did not father the child, or who did father the child.[59]

   g)The Tribunal was not satisfied there was sufficient evidence that the applicant had a well-founded fear of persecution because she was married to a Korean.[60]

   h)The applicant’s delay in applying for a protection visa led the Tribunal “to further doubt the genuine nature of her claims”.[61]

   [50] CB173, [48]

   [51] CB173, [49]

   [52] CB174, [50]

   [53] CB174, [50]

   [54] CB174, [52]

   [55] CB174, [53]

   [56] CB174-175, [54]

   [57] CB175, [55]

   [58] CB175, [57]

   [59] CB175-176, [58]

   [60] CB176, [60]

   [61] CB176, [61]

The claimed apprehended bias

1. The central submission of the applicant was put by Mr McArdle:[62]

   We simply say that if you look at the totality of the matter . . . the logic of the decision and the characteristics of it, paragraph by paragraph – and we’ve gone to a lot of trouble to go through it paragraph by paragraph – we say that in totality, and when all of the document is read, a reasonable member of the citizenry would be anxious that there has been bias.

   [62] T7.5-T7.10

2. The document Mr McArdle referred to which he submitted would give rise to an apprehension of bias is not the transcript of the hearing before the Tribunal; it is the Tribunal’s reasons for decision. And the applicant attempts to demonstrate this submission by identifying passages from the Tribunal’s reasons and making a number of observations in relation to each passage. Further, the applicant does not submit that each of the passages she identifies by itself gives rise to apprehended bias; the applicant submits that it is the passages considered as a whole which give rise to a reasonable apprehension of bias.

3. Although these are the submissions the applicant makes, the applicant, in her written submissions, nevertheless identifies specific passages from the Tribunal’s reasons and makes submissions in relation to each of these passages. The applicant refers to some twenty one passages, and the submissions she makes in relation to these passages can be classified into three categories.

1. The first are three passages, one in paragraph 1, one in paragraphs 4 and 5, and the third in paragraph 9 of the Tribunal’s reasons, in which the Tribunal is said to have expressed doubt about aspects of the applicant’s case. The second category is at paragraphs 7 and 8 of the Tribunal’s reasons. These passages, the applicant submits, disclose a form of questioning, or an approach to questioning that suggests bias. The third, and largest category, are passages about which the applicant makes varying submissions.

First category – unreasonable scepticism

1. The first example the applicant submits would give rise to a reasonable apprehension of bias is a single sentence that appears in paragraph 2 of the Tribunal’s reasons, namely, the “applicants, who claim to be citizens of China”. The applicant submits that this manifests bias because it “suggests some doubt on the part of the Tribunal, which is not explored”.[63] There is no substance to this submission. First, the passage describes a fact: the applicant did claim she was a citizen of the People’s Republic of China. Second, the Tribunal did accept the applicant was a citizen of the People’s Republic of China, and assessed her claim on the basis she is a citizen of that country. Third, the Tribunal is under no obligation to accept any claim an applicant makes before it.[64]

   [63] Applicant’s written submissions, [1]

   [64] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [21] (Beaumont J): “This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants”.

2. The second example is the passages in paragraphs 4 and 5 of the Tribunal’s reasons. Paragraph 4 refers to a letter written by Reverend Sun Ho Jeon; and paragraph 5 refers to the applicant and Mr Ho Jeon appearing before the Tribunal to give evidence. The applicant submits that these paragraphs manifest unreasonable doubts about whether Christianity is restricted by law and by official action in China.[65] Again, there is no substance to these claims. The submission overlooks what actually took place at the hearing, as revealed by the transcript. The transcript records a series of non-leading questions the Tribunal addressed to Mr Ho Jeon about his knowledge of the applicant’s attendance at his church, and about his knowledge of the existence and treatment in China of the Presbyterian Church.[66] There is nothing in the transcript – and none is identified by the applicant – that could reasonably be argued gives rise to an apprehension of bias.

   [65] Applicant’s written submissions, [2]

   [66] Annexure “A” (Transcript), affidavit of D Wu, pages 8-21

3. The third passage is at paragraph 9 of the Tribunal’s reasons. There, the Tribunal summarised questions it asked of the applicant about her being married to a Korean national, and whether the applicant had the right to reside in Korea. The applicant submits the Tribunal “assume[d] the role of the Department in suggesting that the Applicant may have not made a valid visa application”.[67] The passage discloses no such suggestion. And in any event, the Tribunal was not obliged to assume anything one way or the other about the application that was before it. The Tribunal’s role was to determine whether it was satisfied the applicant had a valid claim for protection. It is “for the applicant for a protection visa to establish the claims that are made”;[68] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[69] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[70] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[71]

   [67] Applicant’s written submissions, [13]

   [68] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 ([40])

   [69] Abebe v Commonwealth (1999) 197 CLR 510 at 576 ([187]) (Gummow and Hayne JJ)

   [70] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1100 ([78]) (Kirby J)

   [71] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18 ([58]) (Black CJ, French and Selway JJ)

Second category – mode of questioning

1. The applicant submits the Tribunal questioned the applicant in a way that manifested an intention to “catching out” the applicant.[72] The applicant also submits that to the extent the applicant gave the inconsistent evidence to which the Tribunal records at paragraph 8, that was due to the form and order of the Tribunal’s questioning.[73]

   [72] Applicant’s written submissions, [10]

   [73] Applicant’s written submissions, [7]

2. There is no substance to these submissions. And the lack of substance is demonstrated if one looks at the transcript of the hearing before the Tribunal.

3. The applicant was asked the simple question: “What is your general outgoing expenses?” The applicant gave an answer that referred to rent of $150 a week.[74] A little later the applicant was asked about her living arrangements, and in particular with whom she lived. The applicant answered “[m]y daughter and three other people”, those other people being “[l]andlord and her husband and also landlord’s sister”.[75] Later, the Tribunal member noted that in her application the applicant recorded that she had a sister who lives in Australia.[76] The applicant said her sister lived in Canley Heights, and was a permanent resident, having married an Australian national.

   [74] Transcript, page 23

   [75] Transcript, page 27

   [76] Transcript, page 31

4. After asking the applicant questions about her knowledge of the whereabouts of her husband, the Tribunal asked the applicant when she last had contact with her sister in Australia. The transcript records the following:[77]

   [77] Transcript, pages 34-35

   Applicant: At the moment I actually live at my sister’s home, but the question is, the problem is my sister’s husband doesn’t like me. Because he believe that my situation would bring them some trouble, and he, just because of me, their relationship has some issues, and he always asks my sister like when would I move out.

   Member: So who is your sister in this situation that you told me you lived in?

   Applicant: Uh that is my sister, I do live at my sister’s home, but her husband is Vietnamese, uh, he has a different customs like ours, he always warned me like, when you go out, don’t ever mention that you live at our home.

   Member: I asked you who you lived with, you said you live with the landlord, her husband and her sister. So who, who’s the landlord, is that your sister?

   Applicant: Yes the actual landlord is my brother in law, my sister’s husband.

   Member: And then you live with your brother in law and your sister, is there another person there as well?

   Applicant: Yes, my brother in law’s sister.

   Member: Why didn’t you say it was your sister when I asked you who you lived with?

   Applicant: Because I don’t want to bring too much trouble to my sister uh because of me they fight a lot, and the brother in law doesn’t like me, so I don’t want to bring too much trouble.

5. This passage from the transcript shows that the form of the Tribunal’s questioning was short and non-leading and manifested no predetermined intention by the Tribunal to “catch out” or ensnare the applicant into giving evidence that would be damaging to her claim.

Third category – variously claimed acts giving rise to apprehension of bias

1. Under this category I have included submissions the applicant makes about passages from the Tribunal’s reasons for decision which have no apparent unifying theme or ground.

2. The first is the passage at paragraph 10 of the Tribunal’s reasons where the Tribunal sets out questions the Tribunal asked of the applicant about when she last had contact with her husband. The complaint appears to be that the Tribunal did not take into account the applicant was nervous, and that the Tribunal made an unreasonable criticism of the applicant in failing to distinguish between “when did you last have contact with your husband” and “I last tried to contact him the year before but was unsuccessful”.[78] The applicant further submitted that this amounted to “haranguing”.[79]

   [78] Applicant’s written submissions, [14]

   [79] Applicant’s written submissions, [14]

3. It is difficult to see how these submissions can reasonably be advanced on the basis of the text of paragraph 10 of the Tribunal’s reasons. And it is impossible to make such submission on the basis of the text of the transcript which records the following:[80]

   [80] Transcript, pages 62-64

   Member: When was your last contact with your husband?

   Applicant: After I was pregnant, I tied [sic] to contact him but I couldn’t contact him.

   Member: The question was, when was your last contact with your husband?

   Applicant: I, in last year I tried to call him.

   Member: Did you have contact with your husband last year?

   Applicant: Yes but, but not successful.

   Member: Contact is actually where you have contact, when did you last have contact with your husband, either by speaking to him on the telephone, receiving a SMS message, having an email, seeing face to face, not when did you last trying contact him, when did you last have contact with your husband, this is the third time I asked this question. It’s very basic, when did you last have contact with your husband?

   Applicant: About September 2012.

   Member: So within the last year.

   Applicant: Yes.

   Member: And what contact did you have with him?

   Applicant: I like, I’ve been to his place and his friend said he already move out, and I, I’ve been to his school, and I couldn’t find him.

   Member: Do you understand my question? When did you last have contact with your husband? Not when did you trying contact him, when did you last actually successfully contact your husband?

   Applicant: Before I was pregnant, about the end of July 2011.

4. This does not disclose any haranguing. The Tribunal asked straightforward questions. It was open to the Tribunal to make the findings in paragraph 44 of its reasons in relation to this part of the applicant’s evidence, including the finding that the applicant’s responses to the Tribunal’s reasons indicated the applicant “was not providing full and frank evidence to the Tribunal”.[81]

   [81] CB172, [44]

5. The second passage about which the applicant complains is paragraph 11 of the Tribunal’s reasons. That paragraph records questions the Tribunal asked regarding contact the applicant had with members of the underground church in China and how she was kept informed of what happened to those members, and the applicant’s answer that she was kept informed by members of her family. The submission is that the Tribunal “sneered” at the applicant’s explanation that the applicant’s parents “supported her, despite their misgivings” about her having involvement with the underground church.[82] There is no basis, either from paragraph 11 of the Tribunal’s reasons, or from the relevant part of the transcript,[83] for contending that the Tribunal sneered or otherwise dealt with the applicant’s evidence in a manner that could possibly give rise to an apprehension of bias.

   [82] Applicant’s written submissions, [17]

   [83] Transcript, pages 40-43

6. The third passage about which the applicant complains is contained in paragraphs 13 and 17 of the Tribunal’s reasons. These paragraphs record the evidence the applicant gave about the ten copies of the Bible the applicant said she took into China in May 2009 from Macau. The applicant submits that the Tribunal “appears to twist the evidence around as to whether the Applicant thought she was taking a risk smuggling ten bibles on her person into China”.[84] This submission is not directed to the manner in which the Tribunal questioned the applicant. In reality, it is a submission concerning the Tribunal’s findings about the evidence the applicant gave.[85] As such, the submission is nothing more than an expression of disagreement with the Tribunal’s assessment of the applicant’s evidence.

   [84] Applicant’s written submissions, [18]

   [85] The finding is at CB173, [48]

7. The fourth passage from the Tribunal’s reasons on which the applicant relies as giving rise to an apprehension of bias is at paragraph 14 which records evidence the applicant gave about the baptism of her child. The applicant appears to submit that the Tribunal’s asking whether there was a certificate of baptism was conduct that gave rise to a reasonable apprehension of bias.[86] The applicant appears to submit that the Tribunal should have been satisfied with the evidence the applicant gave that the priest had prayed for her child when it was born.

   [86] Applicant’s written submissions, [19]

8. The Tribunal’s asking about the existence of a certificate of baptism cannot reasonably be regarded as conduct giving rise to an apprehension of bias. The applicant’s submission is a submission about what the Tribunal ought to have done in relation to the applicant’s evidence – a matter which is not within the jurisdiction of this Court to decide.

9. The fifth passage about which complaint is made is that contained in paragraph 15 of the Tribunal’s reasons. That passage records the Tribunal’s raising with the applicant what the Tribunal considered were contradictions in the applicant’s evidence and how this may reflect on her credibility. The applicant makes two submissions. First, this manifested a “rush to judgment that the Applicant had perjured herself”.[87] Second, the Tribunal considered the applicant “will fail in her application partly because she was not assertive and confident in the face of officialdom (in this case, the Tribunal)”.[88] There is no substance to these submissions.

   [87] Applicant’s written submissions, [20]

   [88] Applicant’s written submissions, [20]

10. As to the first submission, the Tribunal enhanced the fairness of the procedure before it by informing the applicant of a matter the Tribunal considered important to its assessment of the applicant’s claim, thus giving the applicant an opportunity to address it. That is made clear by the following passage from the transcript:[89]

    [89] Transcript, pages 51-52

    Member: Have you got the baptism certificate?

    Applicant: The priest just did a pray reading to my daughter, and did the baptism to her.

    Member: There is no certificate is that correct?

    Applicant: That’s right.

    Member: I find this evidence is quite difficult to accept, and this impacts on my assessment on that evidence, but also your credibility more broadly. I asked you very clearly whether or not your daughter has been baptized or christened, you indicated that the priest said a prayer when she was born, but that she was not baptized, although you didn’t say that clearly, I then pointed out to you what your claims were, you’ve now turned full circle saying that she has been baptized, that he did the reading but there’s no certificate.

    In one sense who you are living with now, whether your daughter has been baptized, I [sic] just, issues, they are not the main issues, they are not going to make or break this case, however your reluctance to answer questions, and in addition to that you are providing contradictory information indicates to the tribunal that you are not giving truthful evidence and this cause reflects on that, that evidence, but also your evidence more generally about all of your claims.

    Applicant: Probably it’s because of my expression skill, probably my expression skill is not good, and maybe I misunderstood, and so I made a mistake, and also I’m nervous today, but for my daughter, yes she has been indeed baptized.

    Member: Ok, we have an interpreter here, which is obviously helps with your expression, you are communicate with me in your first language, you haven’t raised any difficulties with the interpreter, you haven’t indicated that you have any problems understanding the interpreter, so I have difficulties accepting that’s influencing your answers.

    Applicant: Uh well let me put it this way, as a Chinese obviously have to learn Chinese, then different people may have different levels of grammar skills and sentence sequence skills, and I am sorry that I may bring some troubles, doubts for you, but now, from now on I would, I will answer questions in a simple and straightforward, straightforward [sic] way.

    Member: What’s your highest level of education?

    Applicant: I finished my bachelor in Korea.

    Member: A university degree?

    Applicant: Yes.

    Member: I’ll put to you that anyone with a university degree has probably at least average if not better than average communication skills in their native language.

11. As to the second submission, there is nothing in the text of paragraph 15 of the Tribunal’s reasons, or in the passage of the transcript I have set out in the preceding paragraph, that indicates that the Tribunal was disposed to deal with the claims before it on the basis that the applicant “was not assertive and confident in the face of officialdom”.

12. The sixth passage from the Tribunal’s reasons on which the applicant relies as giving rise to an apprehension of bias is at paragraph 18. The Tribunal there set out questions it asked of the applicant concerning her evidence that the Chinese authorities fear that the church in China will bring back anti-party forces to China. The applicant appears to submit that the passage indicates the Tribunal viewed the applicant as “dissembling” and her evidence as amounting to “non-credible rationalising”.[90] The passage on which the applicant relies shows no such view on the part of the Tribunal. Nor does the passage from the transcript which the Tribunal summarised in paragraph 18 of its reasons.[91] The transcript discloses short, clear, and non-leading questions.

    [90] Applicant’s written submissions, [21]

    [91] Transcript, pages 56-59

13. Paragraph 18 of the Tribunal’s reasons also refers to evidence the applicant gave about her parents having been informed by the police that the applicant had been accused of anti-government activities. The applicant submits the Tribunal’s summary of this evidence applied a “spurious criterion of not believing evidence unless it is corroborated independently”.[92] That is not an accurate reading of paragraph 18. The Tribunal there recorded that the applicant had provided “very limited evidence regarding her family members being approached, and whether or not this had occurred was open to finding by the Tribunal”.[93] Thus, the Tribunal indicated it had not made up its mind about that part of the applicant’s evidence. And to the extent the Tribunal subsequently did not accept the evidence, that was a matter entirely for it to determine.

    [92] Applicant’s written submissions, [22]

    [93] CB163, [18]

14. The seventh passage from the Tribunal’s reasons which the applicant submits gives rise to an apprehension of bias is in paragraph 19 of the Tribunal’s reasons. That passage summarises the applicant’s evidence that she did not apply for a protection visa because she wanted a better life in Australia; she could have done that by applying for permanent residence in Korea but returned to China because she loved her homeland. The applicant submits the passage discloses an “inconsistency of the Tribunal”.[94] There is no inconsistency. And if there was, it is impossible to perceive any basis for submitting the passage indicates conduct from which a reasonable apprehension of bias may be inferred, whether considered alone or with the other passages identified by the applicant.

    [94] Applicant’s written submissions, [23]

15. The eighth passage on which the applicant relies is paragraph 20 of the Tribunal’s reasons. In that passage, the Tribunal summarises evidence the applicant gave about enquiries the applicant made concerning registration of her child. The applicant submits that the passage indicates the Tribunal “knew the answers to the questions in any case – fees for children born out of wedlock and so on – but uses her interrogation of the Applicant on this point to “show” that the Applicant was not to be believed”.[95]

    [95] Applicant’s written submissions, [24]

1. There is no substance to this submission. The passage on which the applicant relies shows no such thing. Nor does the transcript.[96] The transcript shows the Tribunal asked non-leading questions seeking details of evidence the applicant gave. The Tribunal asked questions such as “What enquiries did you make?”, “When was that? When?”, “Where is the consulate here?”, “And what did they tell you?”, and so on.[97]

   [96] Transcript, pages 64-79

   [97] Transcript, pages 64-65

2. The ninth passage from the Tribunal’s reasons the applicant submits gives rise to a reasonable apprehension of bias is paragraph 43. This paragraph contains the Tribunal’s findings that the applicant was not a credible witness and the Tribunal’s reasons for these findings, which I have summarised in paragraph 12 of these reasons. The applicant submits this indicates an “enthusiasm” by the Tribunal to “overstate”,[98] and discloses a “clear cultural insensitivity”.[99] There is no substance to these submissions. Paragraph 43 discloses findings the Tribunal made which were reasonably open for it to make. The applicant’s submissions manifest nothing more than disagreement with the Tribunal’s findings.

   [98] Applicant’s written submissions, [29]

   [99] Applicant’s written submissions, [30]

3. The tenth passage from the Tribunal’s reasons for decision the applicant appears to submit gives rise to a reasonable apprehension of bias is paragraph 46.[100] The applicant submits that the question of “who donated money” would not “be enough to find a person wanting if the rules of evidence prevailed”, and there are “many reasons for a consistent and basically honest witness to contradict themselves on detail”.[101] The applicant further submits that the Tribunal was “anxious to find against the Applicant” because the Tribunal did not “actually explore whether or not the refugee criteria existed”.[102]

   [100] Applicant’s written submissions, [32]-[35]

   [101] Applicant’s written submissions, [32]

   [102] Applicant’s written submissions, [33]

4. There is no substance to the submission the Tribunal did not consider whether the applicant met the refugee criteria. The applicant’s submissions do not disclose any conduct that gives rise to a reasonable apprehension of bias. They only indicate disagreement with findings the Tribunal made which were open to the Tribunal to make.

5. The eleventh passage on which the applicant relies is paragraph 53 of the Tribunal’s reasons where the Tribunal found that the applicant was a member of the underground church. The applicant submits that from that finding, the applicant “should have been successful, and would have been had it not been the apparent attitude ab initio of the Tribunal”.[103] The reference to the “apparent attitude ab initio” is the earlier submissions the applicant made about the Tribunal’s apparent bias, which I have already rejected. It follows that this submission must also be rejected.

   [103] Applicant’s written submissions, [36]

6. The twelfth passage on which the applicant relies is paragraph 54 of the Tribunal’s reasons where the Tribunal noted that the Tribunal “has not accepted that the applicant was involved with the church to a high level”. The applicant submits that the applicant made no such claim.[104] The applicant makes no other submission about paragraph 54. Presumably, the implicit submission is that this is an error on the part of the Tribunal, and such error is another basis for indicating to a fair-minded observer that the Tribunal was biased. If that is the intended submission, I reject it. The passage does not imply the applicant claimed she was a high level member. And even if it be so read, and is an error, it is not an error from which a fair-minded observer would apprehend bias on the part of the Tribunal.

   [104] Applicant’s written submissions, [37]

7. The thirteenth passage on which the applicant relies is that at paragraphs 55 and 56 of the Tribunal’s reasons. In those paragraphs, the Tribunal records its findings that there is not a real chance the applicant will suffer harm or persecution in the foreseeable future by the Chinese authorities due to the applicant’s religious activities, and thus did not have a well-founded fear of persecution. The applicant submits that these findings were “simply not available on the facts”.[105] This submission amounts to nothing more than disagreement with the Tribunal’s findings. Alternatively, to the extent it is a submission that the Tribunal could not have reasonably made the findings it did, while that may give rise to an arguable claim of jurisdictional error, it would not disclose an arguable claim of apprehended bias against the Tribunal. In my opinion, however, it was reasonably open to the Tribunal to make these findings based on the material that was before it, as disclosed in its reasons for decision.

   [105] Applicant’s written submissions, [39]

8. The applicant also submits that the Tribunal in paragraph 55 manifested an anxiety to find against the applicant that “it will not even accept its own evidence”.[106] It is difficult to assign meaning to this submission. Perhaps the applicant only means that the Tribunal ignored the findings it made in paragraph 53 of the Tribunal’s reasons (that the applicant was a member of the underground church). If that is the submission, it is incorrect. The Tribunal plainly took into account the findings it made in paragraph 53 of its reasons.

   [106] Applicant’s written submissions, [38]

9. The fourteenth passage on which the applicant relies is the Tribunal’s findings at paragraphs 57 and 58 of its reasons that it was not satisfied the applicant would be fined for giving birth prior to marriage or outside marriage, and that, in any event, the Tribunal was not satisfied the applicant would be required to pay more than AUD50 to register her child. The applicant submits that the “hypothetical observer would suspect the motivation for this baseless set of assertions”.[107] A charitable reading of this submission is that the applicant disagrees with the Tribunal’s findings. Not only does the submission disclose no arguable case of apprehended bias; it is incorrect. The finding was reasonably open to the Tribunal based on the materials identified by it in its reasons.

   [107] Applicant’s written submissions, [40]

10. The fifteenth passage on which the applicant relies is what the applicant submits the Tribunal found at paragraph 60 of its reasons, namely, that there was “little evidence” of “prejudice in China regarding mixed marriages between a Han Chinese in a small village and a Korean”.[108] The applicant submits there is “abundant evidence throughout history”, yet there was “no evidence of the Tribunal attempting to explore this circumstance before arriving at this conclusion”.[109]

    [108] Applicant’s written submissions, [41]

    [109] Applicant’s written submissions, [41]

11. There are three things to be said about these submissions. First, the relevant finding was not that there was no prejudice in China regarding a mixed marriage; the Tribunal found the applicant did not have a well-founded fear of persecution based on her having married a Korean. Secondly, even if it were correct that there was material before the Tribunal about prejudice against Chinese who married a Korean which it did not consider, that by itself would not give rise to a reasonable apprehension of bias. And third, the applicant does not appear to suggest that the evidence of prejudice the Tribunal failed to explore was evidence that was before it. For these reasons I reject the applicant’s submissions.

12. The sixteenth passage on which the applicant relies as giving rise to a reasonable apprehension of bias is the finding in paragraph 61 of the Tribunal’s reasons, namely, that the applicant’s delay in applying for a protection visa once in Australia had led the Tribunal to further doubt the genuine nature of the applicant’s claim. The applicant submits that paragraph 61 of the Tribunal’s reasons contains findings that it was to the “discredit” of the applicant that she did not apply for a visa until after “she was abandoned, or pregnant”, and also to the “discredit” of the applicant that the applicant “had involved herself in religion in China “suggesting that she was aware of the risk” – this being an unavailable reading of the Refugee Convention criteria, to say the least”.[110]

    [110] Applicant’s written submissions, [42]

13. The findings the applicant attributes to the Tribunal are not the findings the Tribunal made, or findings that can reasonably be inferred from the Tribunal’s reasons. The applicant’s submissions are simply an emphatic statement of disagreement with findings the Tribunal made.

14. The seventeenth and final passage on which the applicant relies are the findings contained in paragraph 62 of the Tribunal’s reasons in relation to whether the applicant satisfied the complementary protection criteria. The applicant submits that this passage manifests an “apparent desire of the Tribunal to find against the Applicant, come what may”.[111] The applicant submits that these findings are based on the Tribunal’s not believing the applicant, and without the Tribunal’s explaining why the applicant’s child “is the progeny of the Applicant’s Korean’s husband”, or why the applicant’s being married to a Korean will not be “the occasion of prejudice in rural China”, or why the applicant’s following a religion would be immune from “state sanction by an expatriate from Korea via Australia”.

    [111] Applicant’s written submissions, [43]

15. These submissions mischaracterise the Tribunal’s findings and reasoning. It is incorrect to submit that all of the findings contained in paragraph 62 of the Tribunal’s reasons are based on the Tribunal disbelieving the applicant. The Tribunal did not find that the applicant’s Korean husband was the father of her child. The Tribunal did not find that the applicant would not be the subject of prejudice in rural China because of her having married a Korean. Nor did the Tribunal make any finding that the applicant’s following a religion would be immune from “state sanction by an expatriate from Korea via Australia”. The Tribunal made different or at least more particular findings. Each of the findings it made was reasonably open for it to make based on the material before it. And the findings it made were based on reasoning which it has disclosed in its reasons for decision.

Do the Tribunal’s reasons considered as a whole give rise to apprehended bias?

1. I have addressed each passage from the Tribunal’s reasons the applicant in her written submissions submits constitutes a basis from which a fair-minded observer would reasonably apprehend bias, and the reasons for which the applicant so submitted. I have done so even though, as I have noted earlier in these reasons, the applicant submitted that the claim for apprehended bias must be assessed by “the totality of the matter . . . the logic of the decision and the characteristics of it, paragraph by paragraph”. I did so because the applicant’s submissions largely consisted of detailed submissions or observations that were directed to particular passages from the Tribunal’s reasons.

2. The applicant did, however, make a submission that was based on the totality of the Tribunal’s reasons, namely:[112]

   This is a most unsafe and unreliable Decision. It is not a correct Decision at all. It should not stand. It evokes bias.

   [112] Applicant’s written submissions, page 7, paragraph immediately after [43]

3. This submission assumes that it is legitimate to infer a reasonable apprehension of bias on the basis of the Tribunal’s having made what are claimed to be incorrect or unreasonable findings. That assumption is incorrect. It is impermissible to infer a reasonable apprehension of bias only from the fact that the Tribunal made incorrect or unreasonable findings.[113] In any event, for the reasons I have already given, the applicant failed to satisfy me that the Tribunal made any of the errors the applicant submitted it made.

   [113] SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 (Bennett J) at [36]: “The mere making of findings adverse to the appellant does not indicate bias or apprehended bias.”; Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83 (Campbell JA) at [95] (Mason P and Tobias JA agreeing [1] and [2]): “That a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias.”; Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [20] (Harrison J): “I am aware that the plaintiffs do not take kindly to decisions that do not favour them. Unfavourable decisions are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias.”

Conclusion and disposition

1. The applicant has not established that the Tribunal conducted itself in a way as to lead a fair-minded observer to reasonably apprehend bias.

2. I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 May 2014