SZTRP v Minister for Immigration v Anor
[2015] FCCA 2067
•5 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTRP v MINISTER FOR IMMIGRATION v ANOR | [2015] FCCA 2067 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – Whether apprehended bias or actual bias on the part of the Tribunal – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 91R(2) |
| Cases cited: Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28 RL & D Investments Pty Ltd v Bisby & Anor (2002) 37 MVR 479; [2002] NSWSC 1082 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 SZLXK v Minister for Immigration and Border Protection [2014] FCA 1438 SZTEQ v Minister for Immigration and Border Protection & Anor (2015) 145 ALD 577; [2015] FCAFC 39 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZTRP |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3162 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3162 of 2013
| SZTRP |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the “Tribunal”) dated 6 December 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China (“China”), came to Australia in August 2012 as the holder of a visitor visa. She applied for a protection visa on 9 November 2012.
In a statutory declaration provided in support of her protection visa application the Applicant claimed that in October 2011 one of her employees (Ms Z a waitress at a restaurant the Applicant operated) told her that her boyfriend (Mr L) had been arrested by the PSB (Public Security Bureau). He was said to be a teacher who was a devout Christian and secret member of the Underground Church who the police suspected had engaged in evangelism and set up secret bible study groups. The Applicant claimed that Ms Z knew that she had some contacts in the PSB and had asked for her help to save Mr L.
The Applicant claimed that she used her connections with a family friend (Dr C) who worked at the PSB to bribe the PSB. Mr L was eventually released. She had also assisted Ms Z and Mr L to leave the area and had provided them with financial support. The Applicant claimed that she was initially investigated by the police, but that after she paid money to the investigating officer the investigation was terminated.
However, the Applicant claimed that in October 2012 (after she had come to Australia) Mr L and Ms Z were arrested by the PSB and accused of establishing “illegal” religious organisations. She claimed that the police discovered that she had financially supported them and believed that she had provided financial support to their illegal religious activities. The Applicant claimed that, as a result, on 1 November 2012 her restaurants were sealed by the PSB and her husband was arrested and detained.
The Applicant also claimed that Dr C and the police officer who had been in charge of the case had been subjected to internal investigation, that Dr C intended to leave China as soon as possible and had advised her not to return to China as she would be arrested by the PSB.
The Applicant attended a departmental interview. The delegate refused the application on the basis that if the Applicant’s claims to have assisted someone wanted by the Chinese authorities were accepted at face value, any difficulty she may face could be considered to be the result of the enforcement of a law of general application and legitimate state objectives and that country information did not indicate that any punishment to which she might be subjected would be disproportionately severe or that the law would be applied selectively for a Convention reason. The delegate noted that on her account the Applicant’s involvement was not for religious reasons. The delegate was not satisfied that the Applicant’s action was an expression of political opinion or that it would be viewed as such by the Chinese authorities.
In considering the complementary protection criterion, the delegate accepted that the Applicant may face a court case and a prison term, but found that the harm claimed could not be characterised as significant harm for the purposes of s.36(2A) of the Migration Act 1958 (Cth) (the “Migration Act”).
The Applicant sought review by the Tribunal. She attended a Tribunal hearing on 4 December 2013 at which she had the assistance of a Mandarin interpreter. Her migration agent also attended the Tribunal hearing.
On 6 December 2013 the Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Tribunal Decision
In its reasons for decision, the Tribunal summarised the Applicant’s written and oral claims. It set out in some detail her evidence and the issues raised by the Tribunal at the hearing.
The Tribunal recorded that the Applicant claimed that she would be subjected to persecution by the Chinese authorities because she had been implicated in the funding of illegal religious activities. It stated that it had considered these claims and the evidence provided in support “and it is not satisfied that the applicant has provided a truthful account of her circumstances in China or that the claims she had provided in support of her protection visa application are credible”.
While the Tribunal accepted that religious activists and other persons implicated in illegal religious activities had been targeted by the PRC authorities, it was not satisfied on the information before it that persons who had no direct involvement in religious activities suffered the excessive punishment which the Applicant claimed to have suffered.
The Tribunal found that the Applicant’s claims were contrived to enhance her protection visa application. It was not satisfied that her husband had been detained for seven months for the reasons claimed, that her businesses had been sealed or her house and other assets confiscated, or that the Applicant faced life-threatening harm by the authorities in China because she had used connections and bribes to assist persons implicated in illegal religious activities. The Tribunal did not accept as credible the Applicant’s claim that she was a person of interest to the authorities in China for the reasons she gave.
The Tribunal also considered the Applicant’s claim that she had become a Christian. It had regard to her evidence at the hearing that she had gone to a church two or three times, but had since abandoned religious activities. The Tribunal found the Applicant was not implicated in religious activities that would place her at risk of harm by the authorities in China. It was not satisfied there was a real chance she would be subjected to persecution in China for a Convention reason.
The Tribunal considered the complementary protection criterion on the basis that the Applicant claimed she would be subjected to significant harm for the same reasons she faced persecution in China. However, in view of its findings regarding the Applicant’s claims, the Tribunal was not satisfied that she was at risk of significant harm in China for assisting persons implicated in illegal religious activities.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review by application filed in this court on 18 December 2013. At that time she was represented by McArdle Legal. The grounds in the application are as follows:
1. The Applicant appeals against the entirety of the purported privative clause decision of the Refugee Review tribunal made on 25 November 2013 (sic), or in the alternative seek (sic) a declaration according to law.
Particulars
(i) Section 5E (sic).
2. The proceedings leading to the decision were conducted in such a way, and the decision was crafted in such a way so as to lead a reasonable person to apprehend bias and was thus not an effective decision that is protected by Section 474.
Although expressed as two grounds, it is apparent that the issue intended to be raised is a contention of apprehended bias. The Applicant filed and relies on an affidavit of Donglin Wu attaching a transcript of the Tribunal hearing and written submissions prepared by his former solicitor, Mr McArdle. The First Respondent filed an affidavit affirmed by Natasha Simone Blake taking issue with the accuracy of an aspect of the transcript. By the time of the hearing the Applicant was self-represented. The recording of the Tribunal hearing was played in court in its entirety. This approach was taken in light of the fact that the Applicant’s written submissions took issue with the Tribunal member’s conduct and tone during the Tribunal hearing. The parties had the opportunity to address any issues of concern arising out of the conduct of the hearing.
The written submissions also appeared to raise additional (unpleaded) grounds: that the Tribunal reached conclusions in the absence of evidence; that there was an error of law in the incorrect exercise of a discretion by the Tribunal; that the Tribunal did not act within jurisdiction; and that the Tribunal fell into the species of error identified by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. In addition the Applicant relied on a “statement” which is considered further below.
While the essence of the Applicant’s pleaded ground is an allegation of apprehended bias, I have considered all of the issues that appear to be raised by or for the Applicant (including in the submissions prepared by the Applicant’s former solicitor and in the Applicant’s statement).
WZAPN issue
In the written submissions, the Applicant’s former solicitor contended that had the Tribunal “correctly conducted matters” it would have assessed whether there was a risk to the Applicant of a loss of liberty and that as the Applicant feared incarceration in China, the degree of that risk had to be considered in the manner identified by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 in the context of s.91R(2) of the Migration Act.
However the Tribunal in this case made no finding that the Applicant would be detained. Rather, it found that the Applicant was not at risk of adverse attention from the Chinese authorities. As the Minister submitted, the reasoning in WZAPN has no application in these circumstances (see SZTFS v Minister for Immigration & Anor [2015] FCCA 100 at [30]; SZTIQ v Minister for Immigration & Anor [2015] FCCA 6 at [37]; SZLXK v Minister for Immigration and Border Protection [2014] FCA 1438 at [17]). Moreover, the reasoning of North J in WZAPN was not followed in SZTEQ v Minister for Immigration and Border Protection & Anor (2015) 145 ALD 577; [2015] FCAFC 39; SZTIB Minister for Immigration and Border Protection & Anor (2015) 321 ALR 81; [2015] FCAFC 40; and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 and his Honour’s decision was overturned on appeal by the High Court in Minister for Immigration and Border Protection v WZAPN & Anor (2015) 320 ALR 467; [2015] HCA 22.
Insofar as the Applicant intended to raise a ground based on the principles in WZAPN it is not made out.
“No evidence” or “decision contrary to evidence” issue
Although not pleaded, the Applicant’s written submissions also appear to raise a ground of “no evidence”. Under the heading “Decision contrary to evidence” the submissions refer to a “conclusion … being reached in the absence of evidence” which is said to be an error of law. It appears that the issues raised in these submissions relate to expressions of doubt or concern by the Tribunal in the course of the Tribunal hearing. For example, it was contended that the evidence of the Applicant and her daughter was not “believed” from the start of the hearing in circumstances where there was said to be “no evidence” for such disbelief or prejudgement.
As considered below, this contention is not made out. In any event, the fact that the Tribunal expressed misgivings regarding the Applicant’s evidence at the hearing does not establish that the Tribunal based its decision upon findings of fact which lacked any supporting evidence (see WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]–[13] and [16]–[17]).
In its reasons for decision, the Tribunal considered, but rejected, the proposition that the authorities in China would act in the manner alleged by the Applicant in the circumstances which she claimed had occurred. In reaching this conclusion it had regard to country information referred to in its decision which it had put to the Applicant in the course of the hearing. Such evidence was capable of sustaining the Tribunal’s conclusion that it was not satisfied by the information before it that persons who had no direct involvement in religious activities suffered the excessive punishment which the Applicant claimed to have suffered.
The written submissions also relied on RL & D Investments Pty Ltd v Bisby & Anor (2002) 37 MVR 479; [2002] NSWSC 1082 in support of the proposition that a decision contrary to evidence or made in the absence of evidence may involve an error of law. It appears that this decision was cited on the basis that the evidence of the Applicant at the Tribunal hearing was not such as to support the Tribunal’s findings (so that in this sense it could be said that the Tribunal made findings and drew inferences in the absence of evidence). It was submitted that the Tribunal decision reflected the Tribunal’s disbelief of the Applicant’s evidence in circumstance where the Tribunal’s “scepticism” at the hearing preceded the offering of any evidence of substance. The Applicant contended that the Tribunal member had drawn inferences and made findings “at the beginning” of the hearing, had not wavered from such findings and had reached such “unwavering conclusions” without evidence, having decided in advance, prior to the giving of evidence and any testing of it.
As discussed below, it has not been established that the Tribunal “made findings” or reached conclusions at the beginning of the Tribunal hearing. Such contentions do not establish that there was no evidence to support the Tribunal’s findings in its reasons for decision or that the Tribunal’s reasoning was perverse, in the sense of being contrary to the overwhelming weight of evidence. The Tribunal made an adverse credibility finding. It based its findings on country information from external sources indicating that persons such as the Applicant, who had no direct involvement in religious activities, did not suffer the extreme punishment the Applicant claimed to have suffered. It was in light of this information that it did not accept that the Applicant’s claims about past events for the reasons claimed were credible and found that she had fabricated them.
As discussed further below in relation to the pleaded ground of apprehended bias, the transcript of the Tribunal hearing and the Tribunal reasons for decision do not support any contention that the Tribunal made findings and drew inferences in the absence of evidence or contrary to the evidence such as to constitute an error of law. Insofar as these contentions are intended to relate to the assertions of bias they are also considered further below.
“Incorrect exercise of discretion” issue
The Applicant’s former solicitor also submitted that if the Tribunal did not exercise its “discretion” in making a decision within jurisdiction it was not a “decision” at all, and that a fair-minded observer could form a reasonable apprehension that there was a “unreasoned, unreasonable, arbitrary refusal to [find in favour of the Applicant], come what may”. Reliance was placed on the observation by Allsop P (as he then was) in Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [6]. In considering a contractual term giving one party the power to exercise discretion to pay a bonus, his Honour remarked that a discretion (to pay a bonus) had to be exercised honestly and in conformity with the contract and that an “unreasoned, unreasonable, arbitrary refusal” to pay any bonus “come what may” would be a denial of the particular clause agreed between the parties.
The present case did not involve the exercise of such a discretion. It is not a case in which there is an issue as to whether the Tribunal exercised a discretion reasonably (cf. Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18).
Insofar as this submission may be seen as raising a contention that the Tribunal decision was affected by illogicality or irrationality, it cannot be said that the decision to which the Tribunal came was one at which no rational or logical decision-maker could arrive on the same evidence in the sense considered in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 per Crennan and Bell JJ at [130]-[131]. The submission that there was an “unreasoned, unreasonable and arbitrary refusal to find in favour of the Applicant” is also discussed further below in relation to apprehended and actual bias.
“Failure to Act within jurisdiction” issue
It was also submitted generally that the Tribunal had failed to act within jurisdiction (apparently based on the arguments about apprehended bias). Insofar as this amounts to a contention that a Tribunal decision may be challenged on the grounds of apprehended bias it is uncontentious. However, as discussed further below, in this case it has not been established that the Tribunal failed to act within jurisdiction, whether on the basis of an apprehension of bias or otherwise.
Other issues raised by the Applicant
At the hearing, the Applicant sought and was granted leave to file an additional document, described as a “statement”. She restated her protection claims and contended that the Tribunal never intended to consider her evidence fairly, independently and correctly.
Insofar as the Applicant reiterated her claims about events in China, she sought impermissible merits review.
She submitted that the Tribunal should have been aware that it would be “almost impossible” or “very difficult” to contact her husband, son or other potential witnesses overseas, but that the Tribunal could easily obtain evidence from the Applicant’s daughter. She was said to be the best person to confirm the Applicant’s claim. It was submitted that the Tribunal had completely ignored the evidence given at the Tribunal hearing by the Applicant’s daughter. The Applicant made this contention on the basis that the Tribunal had never “intended to consider [the Applicant’s] evidence fairly, independently and correctly” but, rather, just sought an “excuse to refuse [the Applicant’s] review application”.
To the extent that the statement raises issues of apprehended or actual bias this is discussed further below. Insofar as the Applicant’s contention is to the effect that there was a failure by the Tribunal to consider corroborative evidence in its reasons for decision (see Minister for Immigration and Citizenship v SZRKT& Anor (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS & Anor (2014) 309 ALR 67; [2014] FCAFC 16), such claim is not made out. It is apparent from the Tribunal’s account of the evidence before it that it considered the daughter’s evidence. As it stated (at [11]):
The applicant repeated the claims she provided to the Department regarding her involvement with Mr [L] and Ms [Z]. The applicant’s daughter provided the same information. The Tribunal commented that the applicant and the witness were providing virtually identical evidence. The applicant’s daughter stated that she knew nothing about her parents’ difficulties with the PSB until her father was arrested on 1 November 2012, and it was then that her mother told her what was happening. She stated that her evidence was very similar to her mother’s evidence because all the information came from her mother. She indicated that she was repeating what her mother had told her.
This is an accurate summary of what occurred at the Tribunal hearing in relation to the daughter’s evidence. The daughter told the Tribunal that her evidence was based only on what she had been told by her mother after the events in question. Having regard to the nature of the Applicant’s claims, the daughter’s evidence and the findings and evidence set out in the Tribunal’s reasons, it can be inferred that the Tribunal was aware of and had regard to the daughter’s evidence as evidence provided in support of the Applicant’s claims, but that it was of the view that this evidence was not such as to overcome its concerns as to the truthfulness of the Applicant’s account (which her daughter had simply repeated). In these circumstances, the Tribunal’s failure to deal expressly with the daughter’s evidence in the findings and reasons part of its decision is not indicative of jurisdictional error.
The Applicant suggested that a “main reason” for the Tribunal’s finding was that she could not find anyone to confirm her fear of persecution on return. The Tribunal’s reasoning was not based on the absence of corroborative evidence (albeit it had given the Applicant the opportunity to provide corroborative evidence during the hearing).
Apprehended Bias
The Application asserts that “The proceedings leading to the decision were conducted in such a way, and the decision was crafted in such a way as to lead a reasonable person to apprehend bias and was thus not an effective decision that is protected by Section 474”.
The Applicant’s written submissions focused on the conduct of the Tribunal hearing (rather than the Tribunal reasons for decision). It appeared to be intended to rely on the principles considered by the Full Court of the Federal Court in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. A “summary” of the decision in SZRUI was also filed when the Applicant was legally represented. It was submitted generally that the criteria discussed in SZRUI “specifically fit this case”.
Reference was also made to the discussion of the test for apprehended bias in Embertec Pty Ltd v Energy Efficient Technologies Pty Ltd & Anor (2013) 99 IPR 103; [2013] FCA 2 at [4]-[11]. It was acknowledged that a lesser standard should be applied to the Tribunal than that to be applied to a court, but submitted that a “fair minded lay observer… would be stunned by the level of apparent pre-judgement and reference to personal opinion and perception in place of evidence”.
To the extent that this ground does refer to the Tribunal’s decision, it is necessary to bear in mind that, as stated by Gummow ACJ, Hayne, Crennan and Bell JJ in Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48 at [67] (albeit in relation to an allegation of apprehended bias on the part of a judge), an allegation of apprehended bias does not direct attention to or permit consideration of whether the decision-maker had in fact prejudged an issue. Their Honours explained:
As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
(footnote omitted)
Thus (contrary to the Applicant’s written submissions) the Tribunal’s reasons for decision do not go to show (or to confirm) whether or not there was a reasonable apprehension of bias. It is not permissible to reason backwards from the Tribunal decision to conclude that it might reasonably be apprehended that the Tribunal might have prejudged matters addressed in the reasons. The central issue is whether the conduct of the Tribunal hearing might reasonably cause a fair-minded lay observer to apprehend that the Tribunal member might not bring an impartial mind to the resolution of a question for decision in the review (see Wilson at [68]).
It is necessary to bear in mind that when the rule as to apprehended bias is applied outside the judicial system it “must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover … regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned” (footnote omitted) (see Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 75 ALJR 982; [2001] HCA 28 at [5]).
In particular regard is to be had to the non-adversarial nature of the Tribunal proceeding, its need to investigate the facts for itself and the nature of the matters it is required to consider in coming to a decision, as well as the provisions of the Migration Act (see Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [27]).
In SZRUI the Full Court of the Federal Court (Allsop CJ, Flick and Robertson JJ) considered whether the Tribunal had conducted itself in a way that displayed apprehended bias, assessed by reference to the “hypothetical construct of the informed fair-minded observer” (at [2] per Allsop CJ). Their Honours addressed the issue in accordance with the principles outlined by the High Court in Ex parte H at [29] to [32]. As Gleeson CJ, Gaudron and Gummow JJ had stated in Ex parte H at [28]:
…the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
As explained by Robertson J in SZRUI, at [73], the test is “whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision”. The apprehension of bias must be “firmly established”, Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352 per Mason J. Flick J pointed out in SZRUI at [22] that:
…it is equally important to recognise that such an allegation must not be too readily acceded to lest it encourages parties to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”… Such an allegation must be “distinctly made and clearly proved”… It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”…
Thus, it is necessary for a court to apply “realistic criteria” and to take into account the legislative or other context in which a decision is being made. Relevantly, as Allsop J (as his Honour then was) stated in NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [19]:
… The tribunal does not administer public justice. … The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
It must also be borne in mind that robust and forthright testing of an Applicant’s claims does not of itself sustain a finding of apprehended bias (see SZRUI at [6] per Flick J). Indeed, as Flick J also pointed out (at [25]), in the context of review by the Tribunal it has been recognised that an opportunity to be heard may be denied if an Applicant is not alerted to matters such as “specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt” (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at 166; [2006] HCA 63 at [47]; per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
Relevantly, Flick J also observed in SZRUI at [27]:
Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of 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. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard 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. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.
The Applicant relied on the character of the exchanges and the terminology employed by the Tribunal member during the hearing in support of the claims of apprehended bias. In that context, in SZRUI Flick J referred (at [31]) to the decision of Kenny J in VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at 126-127; [2003] FCA 872 at [81]. As Kenny J stated:
Occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. As Kirby J said in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230:
While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator…
As noted earlier, if a Member is sarcastic, mocking or rude, he or she fails to act in conformity with proper standards, but this conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant, whether about his personal situation or otherwise, will also not amount to such error.
On the other hand, if by the Tribunal member’s “conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change [the Tribunal member’s] mind about [the applicant’s] claim” or the Tribunal member’s view, for example, that an account was fabricated, that would vitiate the Tribunal decision by reason of a reasonable apprehension of bias (VFAB at [82]).
Flick J elaborated on this issue in SZRUI at [32] - [34]:
The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v NSW [2007] FCA 925 at [92]–[97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J.
Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck 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.
Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.
Mr McArdle’s submissions contend that the manner in which the hearing was conducted suggested that the Tribunal had reached a decision before any evidence was given, that the Tribunal’s “scepticism” preceded “the offering of any evidence of any substance” and involved assumptions on the part of the Tribunal that events would not occur. For example, there was said to be an assumption about whether the police in China would behave in a certain way. Such an assumption was said to have been made by the Tribunal early in the hearing, despite the absence of any evidence that would enable such a conclusion.
It appears to be submitted that the hearing transcript reveals that inferences had been drawn and findings made or stated by the Tribunal “at the beginning [of the hearing] that ‘were not wavered from’”. It was submitted that such “unwavering conclusion” was reached by the Tribunal “without evidence and that it was consistently adhered to”.
The Applicant’s submissions acknowledged that the testing of credibility would be within its power, but submitted that the Tribunal had reached a conclusion at the beginning of the hearing, including before it heard evidence from the Applicant’s daughter. It was contended that a reasonable person would apprehend that the Tribunal had made its decision in advance and that this went beyond the testing of credibility, searching and probing, and also beyond “vague disquiet” and would lead a reasonable person to apprehend prejudgment and rigidity in the processing of the matter. The written submissions took strong exception to various aspects of remarks of the Tribunal during the course of the hearing.
It is, however, necessary to consider what occurred at the hearing in the context of the Applicant’s claims, the delegate’s decision, the evidence before the Tribunal, the inquisitorial role of the Tribunal and also the particular context in which the Tribunal used the expressions or expressed the concerns with which the Applicant’s written submissions take issue.
The Applicant’s written submissions contain 12 unnumbered paragraphs which address various aspects of the Tribunal hearing (and refer briefly to the Tribunal decision). I have considered the Transcript and had the benefit of hearing the recording of the whole of the Tribunal hearing which, given that some of the Applicant’s concerns involved assertions about the ‘tone’ adopted by the Tribunal, was played in Court.
While it was apparent from the recording of the hearing that the transcript annexed to the affidavit of Donglin Wu was largely accurate in relation to the words said during the hearing, there were numerous occasions on which the Transcript recorded what was said by the Tribunal member as a statement, whereas the inflexion in the Tribunal member’s speech indicated that he was merely asking a question.
In this case the context in which the hearing was conducted is of some significance. The evidence before the Tribunal included the statutory declaration the Applicant had provided in support of her protection visa application in which she claimed that a waitress at her restaurant had told her that her boyfriend (a Chinese teacher at a school who was a devout Christian and secret member of the underground Church) had been arrested by the PSB. The Applicant stated that the police suspected the teacher of evangelising to his students and setting up secret bible study groups among the students and that the waitress knew that she had contacts through the PSB and had asked her to help save her boyfriend. According to the delegate’s account of the Applicant’s evidence at the departmental interview, she had explained that she had no religious belief, but claimed that she “owed the couple she assisted a favour this is why she helped them”. The nature of the Applicant’s claims and the extent of her explanation for providing help to the couple provides relevant context when considering the Tribunal’s questioning of the Applicant at the hearing.
Moreover, the delegate’s decision proceeded on the basis that the Applicant’s claims were accepted at face value. As pointed out in SZRUI, the High Court in SZBEL made it clear that an applicant may not be afforded a meaningful hearing if not alerted to specific aspects of his or her account that the Tribunal considered may be important to the decision and may be open to doubt (SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Hayden JJ). Thus, an applicant should be made aware of issues which the decision-maker considers fundamental or potentially fundamental to her claim. In this case, it was necessary for the Tribunal to make the Applicant aware that it may not accept her claims at face value.
Contrary to the submission that there was no evidence to support an “assumption” on the part of the Tribunal about whether the police in China would act in a particular way, as the Tribunal recorded in its reasons for decision, it had regard to cited information from external sources dealing with religious activities in China and how the authorities respond to those activities. It put such information and its relevance to the credibility of her claims to the Applicant for comment during the hearing (Transcript pp.17-18), consistent with SZBEL.
The Applicant submitted that it appeared from the Transcript that the Tribunal had made up its mind from the start of the Tribunal hearing. At the start of the hearing, the Tribunal member commenced by explaining the Tribunal process. The Tribunal member explained that the Applicant had asked for a review by the Tribunal and that was why they were there and stated that “at the end of this process, I will be making a new decision as to whether or not you satisfy the criteria for the grant of the visa” (Transcript, p.1). Such an explanation does not suggest prejudgement. It alerted the Applicant to the nature of the proceedings.
The Tribunal member explained the Refugees Convention criterion and stated that “I’ll be thinking… about your circumstances and whether you are at risk of harm” (Transcript, p. 2). He advised the Applicant that if the answer to that question was “yes… then I’ll consider whether it is for… the reasons of race, religion, nationality, etc. as defined by the convention” (Transcript, p.2). The Tribunal member also explained that “if I find that you are at risk of harm but decide that it is not for convention reason… then I’m going to consider your case under the complimentary protection criteria” (Transcript, p.2). He then explained that “these are the sort of issues that I’ll be thinking about after we … finish the hearing today” (Transcript, p.2) (emphasis added).
It is necessary to consider whether, contrary to these express statements that the Tribunal had not made a decision at the start of the hearing, what occurred thereafter was such as to lead a reasonable apprehension that the Tribunal might not have brought an impartial mind to making the decision.
The first exchange relied on by the Applicant occurred after the Tribunal had checked that the Applicant understood the interpreter, mentioned that the adviser would be given the opportunity to raise any issues at the end of the hearing and explained that evidence would be taken first from the Applicant and then from her daughter. The Tribunal asked the daughter to wait outside the hearing room. The member then stated:
Member: …All right, ok, so let’s start with a general question. Tell me why you don’t wish to return to China.
Applicant: Because the Chinese communist party will detain me.
Member: And why would they do that? (Transcript, p. 4).
In written submissions, the Applicant contended that this exchange involved a tone of “oh yes, tell me your concoction”. However, not only does the questioning on its face not contain any such adverse implication, but also it is clear from the audio recording of the hearing that there no “tone” of disbelief in this aspect of the Tribunal’s questioning. The fact that the Tribunal started with a general question as to why the Applicant did not wish to return to China and then asked for an explanation as to why she claimed she would be detained, as claimed, is not indicative that the Tribunal had, from the perspective of the reasonable observer, reached a conclusion.
It is notable that the Applicant’s subsequent response was short and rather uninformative (in that she stated “I helped someone in China”). The Tribunal, quite properly, asked for elaboration by questioning her about what happened and why she was in trouble with the government. Such an approach is not, given the Tribunal’s inquisitorial role, supportive of the Applicant’s contention that the Tribunal had, or appeared to have, made a decision before it heard the Applicant’s evidence.
The Applicant then explained that she had helped the boyfriend of one of her employees through her friend, Dr C, who was with the police. The written submissions took issue with the fact that the Tribunal member then told the Applicant that he had “read the department’s file and I’ve listened to the interview you had with the delegate so I’ve heard this story before” (Transcript, p. 4), apparently because of the reference to a “story”. However, the Tribunal member’s remark about having heard “this story” before has to be seen in light of the Applicant’s claims and also the whole of what the Tribunal said in this part of the hearing.
First, the Applicant’s brief explanation was consistent with the account provided in the Applicant’s original statutory declaration and at the departmental interview. In that context, the Tribunal member said, “…uh, I should’ve mentioned, that …, I’ve read the department’s file and I’ve listened to the interview you had with the delegate so I’ve heard this story before, now,… one thing that wasn’t apparent to me from either your written statement or from your oral evidence is why you did all these things, uh as far as I can tell, you didn’t know this man, and … [I] don’t get any sense that your employee, Ms [Z] … is a particularly important person in your life, so why did you do it?” (Transcript. p. 4).
While this is transcribed as one sentence, in fact the Tribunal paused in the course of this questioning. It did not adopt a tone of disbelief. It was clear that it was seeking an explanation. Contrary to the Applicant’s contention, the fact that the Tribunal referred to “this story” is not indicative of disbelief or a decision having been made at that stage.
Nor, contrary to the Applicant’s submissions, can it be said that it appeared that the Tribunal member saw no merit in the explanation that a person would assist someone to whom they did not owe money and that this was indicative of bias or supported the claim that there was apprehended bias. In support of that proposition, the written submissions referred to a limited portion of the transcript in which the Tribunal asked “What did you owe them? Didn’t you pay them for their work?” (Transcript, p. 5).
Again, this extract should not be considered in isolation. This question occurred after the Applicant had responded to the Tribunal’s question about why she helped Ms Z and Mr L by explaining that Ms Z had been her employee for about a year, that Mr L was her boyfriend and “…I feel they are both nice people, uh I always see this boyfriend coming to help out in my shop, I owe them something before so now I think it’s time to pay them back” (Transcript, p. 5) (emphasis added).
The Tribunal’s subsequent question “What did you owe them? Didn’t you pay them for their work?” was in response to the Applicant’s claim that she owed Ms Z and Mr L something. It was not an indication that the Tribunal saw “no merit” and a credibility concern in the claim that a person would assist someone to whom they did not owe money as submitted for the Applicant.
The written submissions contended that the Applicant then provided an explanation as to why she had helped a person she did not know (Transcript, p. 6), that there was no embellishment and that she made it clear that Ms Z and Mr L would be obliged to pay her back. Insofar as Mr McArdle’s submission is that because an explanation was provided it had to be accepted by the Tribunal, clearly that is not the case. It is also relevant to note that this explanation had to be extracted by the member step-by-step. It appears that the Applicant had not provided such an explanation to the delegate. She did not initially volunteer it to the Tribunal. In these circumstances this aspect of the Tribunal’s questioning was not indicative of a closed mind or predetermination. It is notable that in the course of this questioning the Tribunal explained to the Applicant (Transcript, p. 6):
Member: …the issue I’m trying to ascertain here is was there something about Ms [Z] that made your relationship with her any more than your relationship with any of your other employees.
The Tribunal properly sought clarification from the Applicant (Transcript, p. 6):
Member: So according to your statement and your oral evidence this whole uh situation arose because Mr [L] was accused of [being] implicated in illegal religious activities.
The Applicant agreed. However, in response to another Tribunal question, the Applicant also acknowledged that she was not personally involved in religious activities in China. Mr McArdle appeared to suggest in the written submissions that this “frankness” should in some way have assisted the Applicant. The submissions took issue with the fact that the Tribunal member then asked why the Applicant wanted to help someone like Mr L if she had no particular involvement or interest in such religious matters. However it was open to the Tribunal, in exercising its inquisitorial function, to seek clarification of the reason the Applicant helped Mr L. In response to the Applicant’s uninformative response that “I… I didn’t receive much education but this man is well educated, I like this person and also I owe him a favour, I need to pay it back to him” (Transcript, p. 7) the Tribunal again sought clarification, by asking if she was referring to the claim that Mr L had helped to avoid someone robbing her or taking her bag. The Applicant agreed, and then, for the first time, volunteered that Mr L had been stabbed by the person who had tried to rob her and that it was because Mr L had “stepped up” that she had escaped (Transcript, p. 7). The fact that the Tribunal sought clarification of the Applicant’s claims in this respect is not such as to support the allegation of apprehended bias.
The Applicant’s written submissions assert that the Refugees Convention criterion was then “erroneously addressed” by the Tribunal in that the member put to the Applicant:
Member: So [if] he was doing something illegal and then you helped him to avoid punishment that was coming, his way, you are implicated also in assisting a guilty person or potentially guilty person [to] get away (Transcript, p. 8).
Again, this question should be seen in context. It occurred after a discussion about the fact that Mr L was evangelising to the children he was teaching. The Tribunal had put to the Applicant that this was “basically an abuse of his power isn’t it. Evangelising to kids of that age, wasn’t his job to do that.” (Transcript, p.8). It is apparent these remarks were put as questions, albeit they were not transcribed as such. The Applicant agreed that Mr L was doing something illegal. Insofar as it was submitted that the subsequent remark of the Tribunal was indicative of apprehended bias, the delegate had taken the approach that the Applicant had assisted someone wanted by the Chinese authorities and that she would be subject to a law of general application. The Tribunal’s questioning is to be seen in that context as addressing a potentially determinative issue.
The Applicant’s response to this question was “I didn’t know that he was evangelising at the beginning I just have a sense of justice, I hate Chinese communist party” (Transcript, p. 8). The Tribunal member then explored the Applicant’s reference to a sense of justice in a passage with which the Applicant’s written submissions also took issue. Relevantly, the Tribunal member said “Yeah, okay, I heard that, but…, if someone goes into a school here, and has 35 students in their charge, and they are a Math teacher, and they… start try[ing] to convert them to some religion, they’ll probably get sacked, they might even have disciplinary action taken against them, it’s illegal to evangelize to children without the parents’ consent. Now [I think] in China it’s illegal to preach to anybody under the age of 18?” (Transcript, p.8). It is clear from the recording of the hearing that the Transcript omitted the words “I think” from the last part of this extract.
In written submissions it was contended that the Tribunal member had erroneously informed himself as to what happened (to teachers who evangelised) in Australia. It was stated that the Applicant’s solicitor was unaware of any instance of incarceration of a teacher for evangelising in Australia, that the Tribunal’s views were not based on any country information or other verifiable evidence before the Tribunal member, and that this was “a clear indication of a failure to consider evidence in forming a view”. It was also submitted that the Tribunal had “gratuitously indulged” biases and opinions in the course of exercising its power.
However I am not satisfied that these remarks are indicative of predetermination or a concluded opinion in relation to any aspect of the Applicant’s claims. As the Tribunal member immediately thereafter went on to explain “I guess what I try to ascertain here from you is whether you made a mistake or you know, there was an error in judgment on your part, because you were assisting somebody in the perpetration of illegal act. So what you were doing was not about justice, it was about trying to help somebody who had committed a crime to get away with it, or get away” (Transcript, p. 8). Moreover the Tribunal made no findings about what happened to evangelising teachers in Australia.
The Applicant submitted that this part of the hearing was indicative of apprehended bias in that the Tribunal was expressing “a view on the conduct of those who assist in the propagation of religion in China”. It was submitted that instead of taking such an approach the Tribunal should have been assisting a person being persecuted for a Convention reason. It was also submitted that the Tribunal had expressed the view that the Applicant was “an accessory after the fact, to a crime”. Such a submission overlooks the fact that this exchange occurred when the Tribunal was seeking clarification of the Applicant’s assertion that the reason she assisted Mr L was because of her sense of justice. The Tribunal made it clear that it was seeking an explanation from the Applicant, rather than expressing a conclusion or view consistent with predetermination of her application.
Similarly, and contrary to the Applicant’s contention, the Tribunal’s subsequent remark “Well you used bribery and corruption to assist Mr [L]” (Transcript, p. 9), was not indicative of the Tribunal having reached a conclusion that a person engaged in political activity to assist a person oppressed for religious practices was “a criminal who is guilty of bribery and corruption” as the Applicant submitted. In isolation, this remark may seem problematic. However, it is necessary to consider what was said in context.
The exchange in which the Tribunal made this remark followed the Applicant’s explanation that she did not realise “it was that serious” until on 1 November 2012 two of her shops were sealed by the authorities and her husband was detained. After the Applicant discussed the consequences she claimed had occurred to her and her husband, the Tribunal asked “Were you involved in any illegal activities which may have led to the arrest of your husband?” (Transcript, p. 9).
The Applicant said no. At that point the Tribunal member said, (correctly recording the Applicant’s claims to the delegate), “Well you used bribery and corruption to assist Mr [L], have you used bribery and corruption in your business dealings?” (Transcript, p. 9). Given that the Applicant had claimed to have paid bribes to the PSB, this remark was not indicative of pre-determination. The Tribunal went on to explain the basis for its concern, thus alerting the Applicant to its doubts having regard to its knowledge of the situation in China:
The reason I ask is that I find it far-fetched that the authorities would be so concerned as to pursue you to this extent. I mean if you were an evangelising Christian yourself, trying to convert little children to religion, I might find it more believable that they will be particularly nasty to you. But because you used your connections and you paid some money … an activity which apparently is very common in China, I don’t really see the police force of Fujian going all, out to get you. So I want to know anything else anything else that might’ve contributed to their views about you, your husband and your business? (Transcript, p. 9).
Rather than being indicative of bias (as the Applicant submitted), it is apparent that in this part of the hearing the Tribunal member was endeavouring to afford the Applicant every opportunity to explain the basis on which she claimed she had suffered the consequences of which she had complained. In that context, it asked if anything else might have contributed to the views of the police force about her husband and her business. I am not satisfied that the approach of the Tribunal in this part of the hearing is indicative of a conclusion already formed that the Applicant would not come within the Refugees Convention criterion or the complementary protection criterion.
The Applicant submitted that the Tribunal member further revealed disbelief, apparent prejudgement and what the member “thinks” at p.10 of the Transcript of the hearing. This part of the Applicant’s written submissions is as follows:
… A person in fear of the State would not go in to hiding, accordingly to the Member. See Page 10:
“Member: Yeah, I don’t (find that particularly convincing), I don’t think the police in China would put in so many resources chasing you for the situation you described…..
It is in this passage, that the Member holds that “it doesn’t sound convincing” that a person who had been once incarcerated and was still in fear of the State, would not into hiding. There is no country information quoted as to the tolerance and liberality of the Chinese PSB in these matters. There is no suggestion that the whole of the evidence of this case leads to the lack of “convincing”. Just apparent prejudgement and disclosure of what the member “thinks”.
Then, at page 10, lower, the Member develops the scepticism. We have to that point that:
· the police would not use their resource to pursue an individual – no basis for that, just what the Member declares. Then,
· practicing religion and proselytising is not an expression of free speech, the oppression of which is covered by the Act and the Convention, but a punishable crime, and
· the Applicant in aiding such behaviour was facilitating a criminal act.
This is all then qualified at page 10 of a 22 page transcript;
· She may be making this all up. The Member had “heard this story before” being the attitude at the commencement, and now re-stated.
· It may not be made up, but the “targeting” may be for reasons other than those stated.
So, if she is telling the truth, then the police and the PSB would not, according to the Member, “bother with” harassing her. In any case she “probably isn’t”.
The Tribunal did not say the words “find that particularly convincing” at this point in its questioning. This appears to be an implication suggested in the Applicant’s submission. The Tribunal in fact stated:
Member: Yeah I don’t, I don’t think the police in China would put in so many resources chasing you for the situation you’ve described. I find it self-serving that a central figure in your story, [Dr C], would call you after she had her entire career, position, life style, everything ruined, just to say don’t return to China and then disappear, just doesn’t sound convincing to me (Transcript, p. 10).
These were not conclusions based simply on disbelief (from the start) of the Applicant’s evidence. The decision does not reveal errors in reasoning and fact finding, unreasonableness or a flawed reasoning process supporting an inference that the Tribunal had prejudged the case. The mere fact of adverse findings (whether in relation to credit or fact) does not give rise to any inference as to the state of mind of the Tribunal (whether before or while the matter was under consideration).
In SZRUI the applicant had sought to allege actual bias on the basis that exchanges during the Tribunal hearing “evidenced a predetermination by the Tribunal member as to the fate of [the Applicant’s] claim” (see SZRUI at [28] per Flick J). A similar allegation is made in this case. As Flick J pointed out in SZRUI at [29]:
Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; 205 CLR 507 at 531–532 Gleeson CJ and Gummow J there observed:
[71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[72] … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion …
Specific concerns about aspects of the hearing are discussed above. These concerns do not support allegations of actual bias. The conduct of the Tribunal throughout the hearing was not indicative of hostility or a failure to afford the Applicant every opportunity to present evidence and argument and to address dispositive issues such as to support an inference of predetermination. Nor, as discussed above, did the Tribunal “completely ignore” the evidence of the daughter or otherwise conduct the hearing in a manner indicative of predetermination as was submitted in the Applicant’s statement.
In considering whether any inference should be drawn that the Tribunal member’s mind was not open to persuasion I have had regard to the conduct of the hearing (as described above) bearing in mind the context of the Applicant’s claims, the reasons for the delegate’s decision and the explanations and evidence she provided in support of her claims.
It is the case that the Tribunal member was aware of relevant country information. He sought clarification of the minimal explanation the Applicant had given for assisting the couple. He raised concerns about the claimed level of response by the authorities. More generally, he informed the Applicant of his doubts about the credibility of her claims that she was a person of interest to the authorities for the reasons claimed. However the evidence before the Court, including the Transcript and hearing tape as well as the reasons for decision is not such as to support an inference that the Tribunal member’s mind was not open to persuasion.
Actual bias is not made out. As discussed above, the Tribunal reasons for decision, its questioning of the Applicant and the manner in which conducted the hearing are not such as to demonstrate that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.
As jurisdictional error has not been established the application must be dismissed.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 5 August 2015
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