SZTQI v Minister for Immigration

[2014] FCCA 2602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2602

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.91R, 476

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106

SZOOR v Minister for Immigration and Citizenshipand Another (2012) 202 FCR 1; [2012] FCAFC 58

Applicant: SZTQI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3054 of 2013

Judgment of: Judge Barnes

Hearing date: 29 October 2014

Delivered at: Sydney

Delivered on: 29 October 2014

REPRESENTATION

Applicant: In person

Solicitor for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3054 of 2013

SZTQI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a Tribunal decision dated 13 November 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of China, arrived in Australia in August 2007 as the holder of a student visa.  The delegate recorded that she was granted a further student visa which expired in March 2010.  Her application for another student visa was refused.  She applied for a protection visa in September 2012.

3. The Applicant claimed, in essence, that her parents had been arrested and detained in August 2012 due to their participation in the Local Church in China and that they had been involved in signing a petition to the government.  She claimed that at Easter 2012 the police had raided her parents’ home and that there had been a clash between the police and church members attending the gathering which came to the attention of the media.  She claimed that her sister uploaded photographs of the police beating protesters onto the internet and contacted a journalist to investigate, that the journalist was detained by the police and that her sister went into hiding. 

4. The Applicant claimed to have been a member of the Local Church in China from a young age and that she had been baptised at the age of nine.  She claimed that her involvement had been reported to the police by a teacher when she was about 16, that she had to make a public repentance and that her parents were warned.  She claimed that while in Australia she sent church materials to people in China.  The Applicant also claimed that for a long time she could not find a Local Church in Australia and communicated with the church through the internet.  She eventually started to attend a Local Church in Australia in August 2012 at which she was baptised.

5. The application was refused by a delegate of the First Respondent.  The Applicant sought review by the Tribunal.  On 26 September 2013 the Tribunal wrote to the Applicant inviting her to comment on certain information, including her migration history, her delay in applying for a protection visa, and her claim that she first found the Local Church in Sydney in August 2012 some five years after she entered Australia and at about the same time that her request for Ministerial consideration was refused.  The Tribunal informed the Applicant that, subject to her comments or response, this information may cause the Tribunal to find that she did not have a genuine fear of persecution in China, that she only started attending the Local Church in Sydney because her student visa application was refused, that she was not a genuine or committed Christian or adherent of the Local Church, that she had not been truthful in her claims and was not a person of credibility and that the Tribunal may reject her claims.

6. The Applicant responded to the Tribunal’s letter on 15 October 2013.  She claimed that initially she came to Australia to study and that she had no idea about a protection visa until shortly before she applied for it.  She also claimed that she had planned to go back to China after her student visa was refused, but that subsequently her parents were arrested and her sister told her it was dangerous to return. 

7. She claimed that she had been unable to locate a Local Church in Australia when she first arrived, that she had attended other churches but did not feel she was suitable for them and that eventually she found the Local Church by chance.  She claimed that her intention to attend the church was genuine and authentic, as could be evidenced by her church elders.

8. The Applicant attended a Tribunal hearing on 7 November 2013.  It is apparent from the Tribunal hearing record that the hearing commenced at 8.55 am and ended at 11.20 am.  Apart from this, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for the decision.  The Applicant also submitted to the Tribunal a letter of 27 October 2013 from the Local Church in Sydney confirming that she had been “meeting regularly with the church since 08-2012”.

9. In its reasons for decision the Tribunal summarised the Applicant’s claims.  It stated that it had discussed her claims with her, but formed the view that she had memorised her written statement.  It found that while the Applicant had readily repeated information in her written statement, she was vague when asked about matters not contained therein, claiming “she did not know and was not there”. 

10. The Tribunal was of the view that if the Applicant herself had referred in her application to an event as a result of which she feared persecution, then she may be expected to have knowledge about such event.  The Tribunal also found that there were a number of specified significant inconsistencies and deficiencies in the Applicant’s evidence.  It set out (in some 10 subparagraphs) its concerns about particular aspects of the Applicant’s evidence.

11. The Tribunal found that the Applicant’s account of her involvement in the Local Church when she was 16 and publicly sang about Jesus and publicised her involvement was implausible given that she also claimed she had been attending Local Church gatherings in secret for many years.  The Tribunal did not accept the explanations the Applicant gave in respect of the claimed events in 2006.  It had regard to changes in the Applicant’s evidence and found that she had been evasive and inconsistent in her evidence when asked whether the police knew at that time about her parents’ involvement in the Local Church. 

12. It found that the fact that the Applicant was unable to state whether or not the police knew about her parents’ church activities in 2006 contradicted her written statement that her parents were warned not to use their home for church activities. 

13. The Tribunal was of the view that if the police knew the Applicant was involved in the Local Church and that her parents were using their home for church gatherings, they would also know her parents were involved in the Local Church.  It found it implausible (for reasons it gave) that the Applicant would not know if her parents had been arrested in 2006.

14. The Tribunal also had regard to the fact that while at the hearing the Applicant claimed her parents’ home had been searched several times, she had not made such a claim in the written statement provided in connection with her protection visa application, even though she told the Tribunal she found out about these events a week before she made her application.  The Tribunal did not accept her explanation that she did not include this claim because she did not have the details.  It observed that many of the events described in the written statement lacked precise details and found that this was not a reason not to include such significant information at all.

15. The Tribunal did not consider it plausible that the Applicant would not know whether anything happened to her parents between 2006 and 2012 because she barely spoke to her parents and sister and did not know the details.  It was of the view that if there was any possibility of the family being persecuted and if the Applicant had herself experienced harassment from the authorities as claimed, she may be expected to take some interest in these matters and question her parents about their experiences.  It noted that the Applicant had returned to China for a month in 2010.

16. The Tribunal had regard to an inconsistency in the Applicant’s evidence about when and whether she was in contact with her parents and her evidence about their claimed detention from 2012 to early 2013.  In particular, the Tribunal found it unclear how the applicant would have been able to contact her parents by telephone (as she had claimed in her application) if they were in detention.  It found that her explanation at the hearing that she meant she contacted her parents before they were detained, was contrary to her answer on the application form which suggested ongoing contact.

17. The Tribunal also expressed concern about aspects of the Applicant’s evidence about the claimed events of 2012.  It had regard to inconsistencies and changes in her evidence about whether her parents were arrested during a gathering at Easter 2012 when the police raided the premises.  It found that there were contradictions between her initial statement that the police raided their home and people were arrested and her subsequent evidence that she did not know whether others were arrested and between her initial claim that her parents were not arrested, her subsequent evidence that “maybe” they were arrested and her ultimate claim that they were not arrested.

18. The Tribunal considered it implausible that during a police raid the Applicant’s sister was able to take photographs, keep them and upload them on the internet as claimed.  It also found that the Applicant’s claim that there was no conflict and no one was beaten up, but simply warned, was contrary to her evidence that participation in the Local Church was illegal and participants were arrested and also contrary to her written statement that when the police raided their property at Easter 2012 there were clashes which caught the attention of the media. 

19. Having regard to these inconsistencies the Tribunal formed the view that the Applicant had not been truthful in her claims. 

20. The Tribunal also expressed considerable concern about the four and a half year delay in the Applicant applying for a protection visa after her arrival in Australia.  It considered her explanation, but also had regard to her claims about being warned, questioned, forced to undergo education and repent and that she had to practise her religion in secret in 2006 and the claims about raids on her parents’ home.  It was of the view that if the Applicant was genuine in these claims and these events had occurred she would have had some interest in seeking protection in Australia even if she had not been arrested.

21. Given the Applicant’s evidence that she had not been studying since 2009 and did not have the funds to do so, the Tribunal did not accept that by 2010 she genuinely believed that she could study in Australia.  Having regard to her situation and circumstances it did not accept that she did not know about protection visas.  It pointed out that she had shown no difficulty ascertaining information relating to her student visa status and taking action in that respect.  It rejected her claim that she did not know about protection visas and only found out about these shortly before her application.  The Tribunal was of the view that if the Applicant was genuinely fearful of persecution and if her claims were true, she could easily have made inquiries and found out about protection visas long before September 2012. 

22. The Tribunal also had regard to the fact that the protection visa application was only made after the Applicant’s application for a student visa, subsequent Migration Review Tribunal review and application for ministerial intervention were unsuccessful.  The Tribunal considered that this indicated that the Applicant sought protection to extend her stay in Australia and not for any other reason.

23. The Tribunal concluded for all these reasons that the Applicant had been wholly untruthful in her claims.  It rejected the entirety of her claims about events in China finding that such claims had been fabricated for the purpose of the application.  It did not accept that either the Applicant or her family had had any involvement or association with the Local Church in China. 

24. The Tribunal considered the Applicant’s claimed religious activities in Australia.  It had regard to the statement from the Local Church in Sydney indicating that she had been attending since August 2012 and to evidence of her baptism in Australia.  However the Tribunal also had regard to the Applicant’s evidence about her delay in attending the Local Church in Australia, including her claimed inability to locate the Local Church.  The Tribunal found that the timing of the Applicant’s attendance at the church in Sydney suggested that this was done solely for the purpose of the protection visa application.

25. The Tribunal accepted that the Applicant had attended the Local Church in Sydney, having regard to the letter and video. However, having found that the Applicant did not attend the Local Church in China or have any association with it, the Tribunal found that any knowledge she had about the Local Church was knowledge she acquired in Australia. The Tribunal was not satisfied that the Applicant engaged in religious activities in Australia otherwise than for the purpose of strengthening her claim to be a refugee. Hence it disregarded such activities for the purposes of assessing her claims to persecution under the Refugee Convention in accordance with s.91R(3) of the Migration Act 1958 (Cth) (the Act).

26. Having found that the Applicant had no interest in or commitment to the Local Church or Christianity, the Tribunal found that she would not engage in any religious activities, including activities of the Local Church, if she returned to China and that there was no real chance she would be persecuted for reasons of her religion or association with Local Church practitioners or for any other reason now or in the reasonably foreseeable future.

27. The Tribunal also addressed the complementary protection criterion.  It reiterated that it had rejected the entirety of the Applicant’s evidence in relation to events in China on the basis that such claims were fabricated.  Hence it did not consider there was a real risk she would suffer significant harm as a result of events she claimed had taken place in China.

28. The Tribunal acknowledged that it accepted the Applicant had attended the Local Church in Australia. It was mindful that s.91R(3) of the Act did not apply in the context of complementary protection. However the Tribunal found that there was nothing to indicate that the authorities in China were aware of the Applicant’s conduct in Australia or that they would be in any way concerned by her conduct in Australia. It referred to the fact that it had found that the Applicant had no genuine commitment to the Local Church and that her conduct was engaged in solely for the purpose of strengthening her protection visa application and for that reason found that she would not participate in any activities of the Local Church if she returned to China. As it had found that her family had not been involved in Local Church activities it concluded that the Applicant would not be associated with any practitioner of the Local Church. It found that there was no real risk the Applicant would suffer significant harm as a result of her religious beliefs.

29. The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.

30. The Applicant sought review by application filed in this Court on 9 December 2013.  In the accompanying affidavit she claimed she would be “in big trouble and even a life challenged” (sic) if she returned to China.  This seeks merits review and does not amount to a ground of review.

31. The application contains four grounds under the heading “Grounds of the Application”.  It also contains what can be regarded as another four grounds under the heading “Orders sought by Applicant”.  In oral submissions today the Applicant elaborated on aspects of her claims and also raised for the first time a new issue.  It is convenient to consider first the grounds as they appear in the application.

32. The first ground repeats the Applicant’s claims to be a committed Christian who was persecuted and threatened by Chinese authorities due to her underground church activities and claims that people associated with local church activity were also adversely affected.  This ground does not assert any error, let alone jurisdictional error, on the part of the Tribunal except insofar as the Applicant seeks impermissible merits review.  It is apparent from the Tribunal reasons for decision that it understood the integers of the Applicant’s claims and considered them.

33. The second ground is a claim that the Applicant was actively involved in church activities in Australia and states that her “action and religious performance [was] evidenced by church elder with reference”. The reference from the Local Church in Australia merely attested that the Applicant had been meeting regularly with the church since August 2012. On the basis of this letter and the evidence of the Applicant’s baptism, the Tribunal accepted that the Applicant had been involved in and attended the Local Church in Australia from August 2012. However, as set out above, for reasons which it gave which were open to it on the material before it, the Tribunal disregarded such activities in accordance with s.91R(3) of the Act for the purposes of consideration of the Refugee Convention criterion. The Tribunal correctly understood that s.91R(3) did not apply to the complementary protection criterion. However, for reasons outlined above, the Tribunal found the Applicant would not participate in any activities of the Local Church if she returned to China. No jurisdictional error is established in this respect.

34. The concerns the Applicant raises in ground two of the application do not establish jurisdictional error on the part of the Tribunal in its consideration of her claims about involvement in church activities in Australia.

35. The third ground is that the Tribunal unreasonably suspected the truthfulness of the Applicant’s claims “just because of the absence of the evidence”.  It is apparent from the Tribunal’s reasons for decision that there were a number of reasons which led it to reject the credibility of the Applicant’s claims.  It is the case that included in those reasons were references to occasions on which the Applicant had said at the Tribunal hearing that she did not know certain things.  However the Tribunal did not simply suspect or reject the truthfulness of the Applicant’s claims because of the absence of evidence.  The Tribunal had regard to the Applicant’s vagueness when asked about matters not contained in her statement.  It referred to her claim that she did not know and was not there.  However it was of the view that as the Applicant had herself referred to certain events in her application as a basis for a fear of persecution, she may be expected to have knowledge about such events.  Such reasoning was open to the Tribunal, which clearly understood that the Applicant was not in China from 2007 onwards (except for her return visit in 2010).  Beyond this, the Tribunal made findings relating to inconsistencies and other deficiencies in the Applicant’s evidence.  It did, on occasion (including in relation to the claimed events of 2006), find it implausible that the Applicant would not know certain matters (such as whether her parents were arrested in 2006 at a time at which she was in China and aged 16 and claimed that the police knew about her involvement in the Local Church and knew that her parents used their home as a gathering place).  This was one aspect of the Tribunal’s reasoning and one factor that it took into account, but was not the sole reason for the Tribunal’s rejection of the truthfulness of the Applicant’s claims. 

1. The fact that the Tribunal did not accept that the Applicant’s lack of detailed knowledge provided an explanation for her failure to include a significant claim in her written statement is not such as to demonstrate, either alone or in conjunction with its other findings, unreasonableness constituting jurisdictional error. 

2. Similarly, insofar as the Applicant told the Tribunal she did not know whether anything happened to her parents between 2006 and 2012 because she barely spoke to them and did not know the details, the Tribunal noted that she spent a month in China in 2010 and was of the view that given the circumstances she may be expected to take some interest in these matters and question her parents about their experiences.  It is apparent from the Tribunal’s findings that it understood that the Applicant’s knowledge would not be firsthand, but that it expected that she would have asked her parents about their experiences with the authorities.

3. These aspects of the Tribunal decision and the other concerns the Tribunal expressed about deficiencies or changes in the Applicant’s evidence are not such as to establish that the Tribunal made its decision based on an absence of evidence or, as appears to be contended, that the Tribunal decision was unreasonable (or, indeed, irrational or illogical) in a manner constituting jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 and SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58). This is not a case in which it can be said that no decision-maker could have reached the decision that this Tribunal reached on the evidence before it. Unreasonableness or irrationality or lack of logic constituting jurisdictional error is not made out in relation to the Tribunal’s approach to the absence of evidence from the Applicant in relation to particular aspects of her claims.

4. Insofar as this ground raises an issue of apprehended bias, I will return to that issue because the Applicant made specific claims in that respect in her submissions today.

5. The last ground under the heading “Grounds of the Application” is that the Tribunal was “over objective in judging the explanation and the response of the applicant at the hearing”.  As expressed, that ground goes no further than seeking merits review in relation to the Tribunal’s adverse credibility finding.  Beyond this, the only evidence before the Court of what occurred in the hearing is the Tribunal’s account in its reasons for decision.  The Tribunal’s conclusions in relation to the Applicant’s explanations were open to it on the material before it.  As discussed further below it may be that it is intended to assert bias. 

6. Under the heading “Orders sought by Applicant” there are four claims.  The first is that the decisions of the Department and the Tribunal were not fair and reasonable because “they failed to take a good consideration” of the Applicant’s commitment to religion and ignored her background and actual practice of Christianity in China and Australia.

7. Insofar as the Applicant takes issue with the delegate’s decision, this Court does not have jurisdiction to review that decision (see s.476 of the Act). The contention is not made out in relation to the Tribunal decision. The Tribunal considered the Applicant’s claimed commitment to her religion, her claims about her background and her claimed practice of Christianity in China but did not accept those claims. It found, for reasons which were open to it on the material before it, that such claims had been fabricated in their entirety. As to the Applicant’s claims about her practice of Christianity in Australia, the Tribunal accepted that she had attended the Local Church from August 2012 on and that she had been baptised in Australia. However, as indicated, it found that such conduct had been engaged in solely for the purpose of strengthening her claims and was not satisfied that the Applicant would continue to practise Christianity if she returned to China. Such findings do not reveal jurisdictional error, whether by virtue of a failure to have regard to relevant considerations, a lack of reasonableness or otherwise. Insofar as the Applicant takes issue with the merits of these findings she seeks no more than impermissible merits review.

8. The second contention is that the Tribunal did not consider the Applicant’s statement and comments in response to the questions asked in the hearing and judged her faith simply by knowledge, instead of real practice and fact.  First, as pointed out by the solicitor for the First Respondent, this is not a case in which the Tribunal’s conclusions were based on an assessment of the Applicant’s knowledge of Christian doctrine or practice.  Insofar as this is intended to be a reference to the Applicant’s written statement, it is clear that the Tribunal understood, set out, and considered the Applicant’s claims in her written statement.  It recorded that she also gave evidence at the hearing.  As indicated, the only evidence of what occurred in the hearing is the Tribunal’s account.  It appears from that account that the Tribunal addressed those aspects of the Applicant’s evidence that amounted to claims made in the course of the Tribunal hearing.  Indeed the Tribunal addressed the Applicant’s evidence at the hearing in some detail.  This claim is not made out.

9. The third complaint is that the Tribunal failed to “prudently consider” the Applicant’s risk due to her commitment to “paralysing” (sic), this is presumably intended to refer to a commitment to proselytising on return to China.  Insofar as there was any such claim made by the Applicant, it was addressed by the Tribunal’s findings that the Applicant would not engage in any religious activity if she returned to China for the reason that she was not genuinely committed to Christianity or to the Local Church.

10. The fourth complaint is that the Tribunal failed to consider the Applicant’s statements, explanation and evidence provided in supporting her claim “as a whole”.  However not only did the Tribunal state in its reasons that it had considered all the Applicant’s claims singularly and cumulatively, but also it is apparent from the Tribunal’s approach that it made an adverse credibility finding for very detailed reasons and on that basis rejected the entirety of the Applicant’s claims about events in China.  There is nothing to support the contention that the Tribunal failed to consider the Applicant’s statements, explanation and evidence as a whole.

11. In oral submissions today the Applicant raised a number of issues.  Some of these reiterated claims in her application (such as the contention that the Tribunal failed to consider her background and the risk she faced in China for potential persecution) and add nothing to the grounds and do not establish jurisdictional error.

12. Insofar as the Applicant reiterated a contention that the Tribunal had relied on her inability to provide details, as indicated, that was not the sole basis for the Tribunal decision.  The Tribunal did have concerns about the Applicant’s vagueness and her inability to provide details of specific matters.  It considered but rejected her explanations for such inability to provide details.  Insofar as her concern is on the basis that she was not in China at the relevant time, it is apparent from the Tribunal reasons for decision that it understood this.

13. The Applicant appeared to take issue with Tribunal questioning at the hearing and its consideration of her responses that she was unable to provide details because she was not in China.  There is nothing in the Tribunal reasons for decision to indicate that the Tribunal erred in a manner constituting jurisdictional error in the manner that it took into account the Applicant’s inability to provide certain evidence or inconsistencies in her evidence.  It was open to the Tribunal to rely on the Applicant’s lack of knowledge of details of her claims.  Its approach in that respect is not indicative of unreasonableness, illogicality or irrationality.  It clearly understood that the Applicant was not in China at all relevant times, but also had regard to her failure to inquire as to what had happened to her parents.

14. The Applicant also reiterated that it had taken her a long time to find the Local Church in Australia and took issue with the fact that the Tribunal had not accepted her explanation in that respect.  However the Tribunal was aware of this claim and her explanation.  It accepted that she ultimately attended the Local Church in Australia.  It considered in some detail the Applicant’s explanation for why she had spent nearly five years in Australia but had been “unable to find the Local Church and the fact that she only found one “by chance” at a time when her student visa application was unsuccessful and at about the same time she found out her request for Ministerial consideration was unsuccessful.  The Tribunal found that the timing suggested the Applicant’s actions were solely for the purpose of her protection visa application.  In reaching that finding the Tribunal had regard to the Applicant’s English language ability in circumstances where she claimed to have completed an English language course and years 11 and 12 of high school in Australia.  It was of the view that if her English was sufficient to undertake such study as well as to find employment, go through the student visa application and review process and find a migration agent, it would have been sufficient to enable her to undertake an internet search to locate a Local Church in Australia or to use the help of friends, classmates, work colleagues and teachers.  In other words, the Tribunal considered but did not accept, the Applicant’s explanation for the time it took her to find a Local Church in Australia.  It was open to the Tribunal for the reasons which it gave not to accept the Applicant’s explanation for the delay in finding a Local Church.  Its reasoning does not demonstrate irrationality, illogicality or unreasonableness in a manner constituting jurisdictional error.  While the Applicant disagrees with the Tribunal’s findings this is not indicative of jurisdictional error.

15. The Applicant raised for the first time today a concern about the manner in which the Tribunal conducted the Tribunal hearing.  She claimed that in the hearing the Tribunal member did not look at her, made no eye contact, shook or lowered her head and that the Tribunal had not respected her.  The Applicant also claimed that the Tribunal member kept shaking her head and gave the impression from the start that she did not believe what she said and that the Tribunal had not fully considered the potential risk to her, shown respect to her case or personal respect.

16. She claimed that the Tribunal had not given serious regard to her case and that from the start of the hearing she had the impression that the Tribunal did not believe her or did not want to believe her.  She claimed this put her under a lot of pressure and affected her evidence.  She claimed she was asked questions about events when she was not present in China and that some questions were asked more than once and were repeated by the Tribunal, although she had told it that she could not provide answers and did not know because she was not in China.

17. The Applicant also claimed that she felt she had been discriminated against by the Tribunal because of her race. 

18. These claims, made for the first time today, raise serious allegations of apprehended and/or actual bias.  The initial difficulty that faces the Applicant is that there is simply no evidentiary support for such allegations based on what occurred at the Tribunal hearing.  The Applicant told the Court that she could not put evidence before the Court about the Tribunal’s demeanour.  However it was open to her to put some evidence before the Court by way of a transcript of the Tribunal hearing or to ask the Court to listen to a recording of the Tribunal hearing, insofar as some aspects of her claims referred not only to the demeanour of the Tribunal but also took issue with the Tribunal questioning. 

19. The material before the Court is not such as to establish either actual bias in the sense of a state of mind or prejudgment whereby the Tribunal would be so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17), or apprehended bias considered by reference to the hypothetical fair-minded layperson properly informed as to the nature of the proceedings, the matters in issue, and the conduct said to give rise to an apprehension of bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).

20. As the First Respondent pointed out, an allegation of bias is a serious matter.  It is not to be lightly made and must be clearly alleged and proven.  That has not been done.  The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

21. Insofar as the Applicant took issue with the manner of questioning at the hearing, there is insufficient evidence to support such claims.  In any event, even if there was highly specific and, indeed, onerous or repetitive questioning of the Applicant, bias or a reasonable apprehension of bias would not be demonstrated by such specific questioning, even if it appeared to be in the form of a test or an examination (SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 per Buchanan J (Perram J agreeing) at [82]). What is relevant is the use that is made of the Applicant’s evidence and responses at the Tribunal hearing having regard to the nature of the process of administrative decision-making and the role of the Tribunal (SZJBD at [82]). The Applicant’s allegations in this respect do not establish jurisdictional error.

22. Further, her concerns about the “demeanour” of the Tribunal, perceived from the perspective of the appropriately informed reasonable observer are not such as to be indicative of prejudgment by the Tribunal, a mind incapable of alteration or such as to give rise to a reasonable apprehension of bias.  I note that the Applicant did not allege that the Tribunal said anything to her which would communicate discrimination on the basis of race.  Rather she claimed she “felt” this, presumably, as an overall impression.  Without the benefit of a transcript of the Tribunal hearing, which would at least indicate the line of questioning and approach taken by the Tribunal, this allegation is not such as to make out a claim of actual apprehended bias, whether seen in terms of an assertion of racial discrimination, or on any other basis in relation to prejudgment or an appearance of an apprehension of bias.

23. Insofar as the Applicant’s concern is that the Tribunal indicated a concern about whether or not it accepted the truthfulness of her claims, it did indeed do so, as was entirely proper, in the s.424A letter which preceded the Tribunal hearing.  The Applicant was made aware before the hearing of the Tribunal’s concerns about her truthfulness and credibility.  The testing of her claims at the Tribunal hearing is to be seen in that light.  The fact that the Tribunal raised such issues with the Applicant before the hearing is not, however, indicative of either actual of apprehended bias. 

24. Moreover it is well-established that it will be a rare and exceptional case in which bias, actual or apprehended, can be demonstrated solely from the published reasons for decision (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [18] per North and Lander JJ). This is not such a case.

25. Having regard to the Tribunal’s reasons for decision the Applicant’s disagreement with the Tribunal’s findings and the issues she raised about its approach to perceived inadequacies in her evidence and her lack of knowledge are not such as to establish that “fact-finding has been conducted in a manner which can be described … as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” such as to give rise to a reasonable apprehension of bias from the perspective of the fair-minded observer (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 per Allsop J (as his Honour then was) at [115]).

26. As set out above the Tribunal gave reasons for its findings.  It addressed the Applicant’s claims and explanations.  Its findings were open to it on the material before it for the reasons it gave.  The reasons for decision do not support the proposition that such an observer would reasonably apprehend that the conclusions of the Tribunal were reached with a mind not open to persuasion or a mind unable or unwilling to evaluate all the material fairly.

27. There is no evidence before the Court to support the Applicant’s claims of actual or apprehended bias. 

28. As jurisdictional error has not been established on any of the bases contended for by the Applicant, the application must be dismissed.

29. The Applicant has been unsuccessful and the Minister seeks costs in the sum of $3,500. The Applicant told the Court that she had no job and no money. However her lack of funds is not a reason for departing from the normal principle that the unsuccessful applicant in proceedings of this nature should meet the costs of the First Respondent. It may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is reasonable. It is considerably less than the amount provided for in the scale to the Federal Circuit Court Rules, both appropriately and reasonably in the circumstances of this case.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  11 November 2014