SZUCD v Minister for Immigration
[2017] FCCA 421
•8 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUCD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 421 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether actual or apprehended bias on the part of the Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.91R(3), 425(1) |
| Cases cited: AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 |
| First Applicant: | SZUCD |
| Second Applicant: | SZUCE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 762 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 11 September 2015 16 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2017 |
REPRESENTATION
| The First Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision made on 24 February 2014.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 21 August 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 762 of 2014
| SZUCD |
First Applicant
| SZUCE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & 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) dated 25 February 2014 affirming a decision of a delegate of the First Respondent not to grant protection visas to the Applicants.
The Applicants are mother and son and citizens of China. The First Applicant (referred to for convenience as the Applicant) arrived in Australia in February 2008 as the holder of a student visa. She applied for protection in September 2012. Her son, who was born in Australia, was included in the application as a member of her family unit. The application was refused and the Applicants sought review by the Tribunal.
The Applicants’ claims were set out in a statement accompanying the protection visa application. In essence, the Applicant claimed that she feared harm as an active member of the Local Church in China and in Australia. She claimed that her family had been targeted by the Chinese authorities because of their involvement in the Local Church, that her father had been detained in 2007 and that she had been warned by her school regarding her involvement with the church. She claimed that she had been unable to find a Local Church on arrival in Australia and that she joined another church which she left because her father disapproved. She claimed she then started to “communicate with the church folk in China via the Internet”, but found a Local Church in Australia by “accident”. She claimed that she then joined church gatherings and was baptised. She claimed she passed on information to church friends in China and started a blog. The Applicant claimed that in April 2012 her father’s church in China was “sealed” again and that her blog was attacked and shut down.
The Applicant submitted a letter of support from officials of the Local Church in Sydney which confirmed that she had been “meeting regularly with the church” since March 2012 and photographs of what she claimed was her baptism in July 2012.
The Applicant also claimed that her family had “denied” her marriage, that her boyfriend did not support the application and had left her due to “great pressure”. She claimed that she and her son would suffer from “the family planning office’s persecution” on return to China and would experience social discrimination.
In a March 2013 interview with the delegate the Applicant explained that her boyfriend’s parents had disapproved of their relationship and that she and her partner had separated when their child was one month old. She claimed he abandoned them due to family pressure in relation to a traditional dowry or “gift giving” and a fear he would be located by the Department of Immigration because of the protection visa application. She also claimed that her father had been wanted by the Chinese authorities because he owed money, that he had been detained three times because of his beliefs, most recently since January 2013. She claimed to fear she would be imprisoned in China, that her son could not be registered as he had been born out of wedlock and that she would be fined.
The application was refused. The delegate gave detailed reasons for making an adverse credibility finding. The delegate found that the Applicant was not a genuine Christian adherent of the Local Church and was satisfied that she had “either embellished or entirely fabricated” her material claims and that she was not a witness of truth. In light of cited country information the delegate did not accept her unsupported assertion that her child would never be able to be registered because he was born out of wedlock. He found that the amount the Applicant claimed she would be fined for contravening Chinese family planning laws was “dramatically more” than indicated by cited independent information. The delegate was not satisfied that either Applicant met the Refugees’ Convention criterion or the complementary protection criterion based on her claims about the impact of Chinese family planning laws and social discrimination.
The Applicant sought review by the Tribunal. She attended a Tribunal hearing in February 2014. A transcript of the Tribunal hearing prepared by Legal Transcripts Pty Ltd is in evidence as an annexure to an affidavit sworn by the Applicant on 2 October 2015.
The Tribunal Decision
In its reasons for decision the Tribunal set out in some detail the Applicant’s evidence at the departmental interview and referred to issues and doubts raised by the delegate in relation to aspects of her claims. It stated that at the Tribunal hearing the Applicant had “repeated the claims she provided to the Department regarding her involvement with the local church and the issues relating to the PRC government’s family planning regulations”. It summarised the Applicant’s evidence at the Tribunal hearing and referred to issues it had raised with her and information it had put to her in relation to aspects of her claims and her responses.
The Tribunal recorded the following:
29. The applicant stated at the end of the hearing that the Tribunal had a closed mind and a negativity regarding her and her claims. She stated that she knew from the beginning of the hearing that the Tribunal was not willing to consider whether her claims were genuine. The Tribunal commented that it did not have a preconceived view about her claims. It commented however, that before the hearing it had the opportunity to read her statement to the Department, and listen to her oral evidence at the interview with the delegate, and having considered that evidence it did have some concerns regarding the credibility of her claims. The Tribunal commented that it had a responsibility to raise those issues with her at the hearing. The applicant stated that the Tribunal could with a stroke of the pen send to (sic) her death. She stated that it was the last chance she and her son had to live a safe and peaceful life. The Tribunal commented that it was not its intention to distress the applicant.
The Tribunal stated that it had considered the Applicant’s comments at the hearing regarding its attitude to her evidence and claims, but was satisfied that she had been provided with a real opportunity to present and discuss her claims.
The Tribunal summarised the Applicant’s claims about religion, including her claims that she was an active and devout member of the Local Church and was fearful that if she returned to China she would be prevented from practising her religion freely and safely; that after she arrived in Australia she could not find a Local Church, but engaged in internet-based religious activities with her church in China, including sending literature to China from the Local Church in Australia; that she established a blog intended to motivate the Chinese government to “realise its promise of freedom of religious belief”; that the authorities had discovered her internet-based activities, blocked the blog and harassed her family regarding her location; that she was now at risk of harm by the authorities for having the blog and that she faced prison and other life-threatening harm for her religious activities. It recorded that the Applicant also claimed that she and her son would be subjected to harm by the authorities and society in China because her son was born outside marriage; that she would face a large fine she would not be able to pay so her son would not be registered; and hence that her son was at risk of losing both parents.
The Tribunal found that, having considered all the evidence, it was not satisfied that the Applicant was a credible witness or that she had provided an accurate and truthful account of her circumstances or the circumstances of her son. It formed the view that she had “contrived all the main claims provided in support of the application in the belief that it would enable her and son (sic) to obtain protection visas”.
The Tribunal accepted that the Applicant had attended a Local Church in Sydney since March 2012, but stated that having considered her long delay in joining the Local Church after arrival in Australia and the reasons she provided (that she could not find a suitable church), it had formed the view that she did not participate in the Local Church in Australia for many years because she was not interested in the church or the religion. It was not satisfied that the Applicant had looked for a church or that she had any interest in finding one. It was of the view that finding a Local Church in Sydney was an easy task for anyone interested in the religion or the church and that if the Applicant had wanted to find such a church she had the time, opportunity and ability to do so.
The Tribunal found that the Applicant became involved with the Local Church in 2012 to enhance her protection visa application. It did not accept as credible her claim that she had a genuine interest in religion or that she was involved with the Local Church in China; that she had a blog or sent religious literature to China; that her blog was closed down by the authorities; that she attracted the adverse interest of the PRC authorities because of the blog; or that she intended to participate in religious activities in China which would attract the adverse interests of the authorities. It found that all these claims relating to religion were contrived by the Applicant to support the protection visa application.
The Tribunal accepted that the Applicant had participated in religious activities in Australia, but as it had found that her involvement with religion was contrived to support the protection visa application it was not satisfied that she had a genuine interest in religion. It found that the Applicant’s involvement with religion in Australia was undertaken for the sole purpose of strengthening her claim to be a refugee and, in the context of considering the Refugees Convention criterion, disregarded this conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (the Act).
The Tribunal also considered the claims that both Applicants faced serious harm in China because the child was born outside marriage in contravention of the Chinese government’s family planning regulations, that the First Applicant would incur fines she could not pay and that the Second Applicant would become an unregistered child.
The Tribunal accepted that the Applicant may be fined for contravening the Chinese family planning policies, but found that any penalties would be the same penalties as would apply to all Chinese citizens who contravened the family planning laws. It had regard to the fact that non-discriminatory enforcement of such generally applicable laws did not ordinarily constitute persecution for the purposes of the Refugees Convention criterion. The Tribunal found that in circumstances where the Applicant had contravened the Chinese government’s family planning policy by having a child outside marriage, the imposition of a fine and having to take certain steps to ensure that the child was registered was not discrimination or conduct which amounted to persecution for Convention purposes.
The Tribunal considered the Applicant’s claim that she would not be able to pay the severe fine that would be imposed, but had regard to country information as to the likely range of fines which it recorded it had discussed with the Applicant at the hearing. It was satisfied on the basis of such information that the Applicant’s fear that she would have to pay more severe fines to the Fujian authorities was not well-founded. It concluded that she was not at risk of being subjected to different or harsher treatment by the Chinese authorities because she had breached the family planning laws.
The Tribunal did not accept the Applicant’s claims that she would not have the resources to pay the fine in China, being of the view that she had concealed her actual financial situation. It had regard to her evidence that she arrived in Australia with $30,000 and worked for up to six days a week for several years before she gave birth to her son. It found that she had had the time, ability and opportunity to save sufficient funds to pay the social compensation fee and that she “had the ability and intention of paying the social compensation fee when she decided to have a child outside marriage”.
The Tribunal accepted that in conservative rural China the Applicants may suffer societal disapproval if the Applicant returned as an unwed mother but, after considering her evidence on this issue and the treatment she anticipated, was not satisfied that the harm the Applicants faced was sufficiently serious to constitute persecution.
The Tribunal was not satisfied that there was a real chance the Applicant would be subjected to persecution in China for reasons of religion or membership of a particular social group such as “women who have children outside marriage” or for any other Convention reason.
The Tribunal also considered the claims submitted on behalf of the Second Applicant, in particular that he would be discriminated against and subjected to persecution by the authorities and society in China because he was born outside marriage in breach of the family planning provisions and that he would not be registered and would be a member of a particular social group such as “black children in China” and as such would remain unregistered and would be denied rights and privileges which would otherwise be available to him as a PRC citizen.
The Tribunal was satisfied, having regard to country information relating to the application of the PRC government’s family planning laws, that registering a child born out of wedlock was a straightforward procedure and that whilst certain steps would have to be undertaken and a fine paid, once the fine was paid the child would be registered and would have access to the rights and privileges of other PRC children.
In view of its earlier findings that the Applicant had the intention and ability to pay the fine for contravening the family planning policies, the Tribunal did not accept as credible her claims that the child would be a “black child” in China or that he would be subjected to persecution for reason of his membership of such a particular social group. It accepted that in conservative rural China the child may suffer societal disapproval because he was born outside marriage, but on the basis of the Applicant’s evidence in this respect and the treatment she anticipated for her son, was not satisfied that the harm anticipated would be sufficiently serious to constitute persecution.
The Tribunal was not satisfied that there was a real chance that the child would be subjected to persecution in China for reason of his membership of a particular social group such as black children in China or for any other Convention reason.
The Tribunal considered the complementary protection criterion. In view of its findings regarding the credibility of the Applicant’s claims, it was not satisfied that there was a real risk that the Applicants would suffer significant harm in China for any of the reasons claimed.
The Tribunal had regard to its finding that the Applicant had contrived all the main claims she provided in support of the application and its rejection of the claim that the Applicants faced harm in China for reasons of their involvement in religion or for breaching the government’s family planning provisions. It found that “similar considerations” applied in relation to the complementary protection criterion and concluded that it was not satisfied that there was a real risk that the Applicants would be subjected to significant harm for their involvement in religion or for breaching the Chinese family planning law. It found that “these claims were, for reasons already provided, contrived by [the mother] to enhance the protection visa application”.
The Tribunal observed that it had accepted that the Applicants (sic) had “attended religious activities” in Australia but had found that the Applicant’s involvement in such activities was undertaken for the sole purpose of enhancing the protection visa application. The Tribunal was not satisfied that the Applicant had a genuine interest in religion and did not accept as credible the claim that she would participate in religious activities in China which would attract the adverse interest of the PRC authorities in the reasonably foreseeable future. It found that her involvement with religion in Australia would not be a matter of particular or adverse interest to the PRC authorities. It was not satisfied that the Applicants were at risk of being subjected to significant harm by the authorities in China for participating in religious activities in Australia.
The Tribunal reiterated that it accepted that in conservative rural China the Applicants may suffer societal disapproval because the mother was a single mother and the child was born outside marriage, but after considering the mother’s evidence and the treatment she anticipated for herself and her son, was not satisfied that the harm would be sufficiently serious to constitute significant harm. It found that the Applicants did not meet the complementary protection criterion.
The Tribunal affirmed the delegate’s decision.
These Proceedings
The Applicants sought review by application filed in this court on 24 March 2014. The only ground in the application is as follows (errors in original):
I had the interview on 20 February 2014 and I got the refused letter on 25 February 2014. The decision time was very short. I think he made the decision without careful consideration responsibly.
During my interview, I felt by prejudice and discrimination from the Tribunal member.
During my interview, he has done some gestures told me to stop talking. He can’t deprive me of the right to speak.
I can feel that he took his emotions to interview me rather than an objective.
The Applicant did not file written submissions or a transcript of the Tribunal hearing before the scheduled hearing date. However at the hearing she made specific claims about the conduct of the hearing which appeared to raise allegations of actual or apprehended bias. The hearing was adjourned. I made orders for the Applicant to file and serve a transcript of the Tribunal hearing and written submissions. The Applicant filed an affidavit annexing a transcript of the Tribunal hearing, but did not file written submissions.
The Applicant’s concerns were initially expressed in terms which most obviously raised an allegation of actual bias. The First Respondent’s written submissions focused on the issue of whether what occurred at the Tribunal hearing was indicative of actual bias. In oral submissions the issue of apprehended bias was canvassed in more detail.
At the resumed hearing, I gave the Applicant the opportunity to raise anything of concern about the Tribunal hearing as revealed by the transcript. She contended that the Tribunal member had made up his mind or appeared to be biased; that during the hearing she was constantly interrupted by the Tribunal member so she was not able to finish her stories; that the Tribunal member spent more time looking into the computer checking for something than actually interviewing her; and that throughout the course of the hearing the Tribunal member was not emotionally stable and was angry. The Applicant also expressed concern about several specific aspects of the Tribunal hearing (discussed below). She pointed out that towards the end of the hearing she had raised her concern with the Tribunal member that he was “always negative and suspicious”.
In essence, the Applicant’s contention was that at the hearing the Tribunal member had revealed or appeared to reveal pre-judgment by his words and actions and that he was not interested in listening to what she had to say because he had already made up his mind to refuse the application.
The First Respondent submitted that having regard to the transcript as a whole, neither actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (in particular at [72] per Gleeson CJ and Gummow J) nor apprehended bias was made out. It was pointed out that the Applicant’s credibility was a central issue and submitted that while she had been disbelieved, the Tribunal had given her an opportunity to make her case. It was also contended that the allegation of bias the Applicant put to the Tribunal at the end of the Tribunal hearing had been dealt with by the Tribunal, in its indication that it had doubts about her credibility in light of the evidence that she had provided. The Tribunal was also said to have invited the Applicant to give evidence to meet the concerns it had with her evidence. This was said to indicate that the Tribunal member was not so fixed in his view that it was incapable of being altered.
The First Respondent acknowledged that the Tribunal member had indicated his disbelief of aspects of the Applicant’s evidence during the hearing, but submitted that this case was distinguishable from VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 in that the transcript did not suggest that there were “…constant adverse comments on [the Applicant’s] evidence” “numerous displays of irritation, impatience, frustration and, sometimes, sarcasm” or constant interruptions as considered in VFAB at [82]. It was submitted that, at most, the Tribunal had conducted a “robust and forthright testing” of the Applicant’s claims which, it was contended, would not establish apprehended bias (see SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 per Barker J at [17] cited with approval in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24] per Flick J). The First Respondent submitted generally that to the extent that the Applicant alleged that the Tribunal member was rude, actual bias was not necessarily to be inferred from impatience, irritation, discourteousness or aggressiveness on the part of the Tribunal (VFAB at [23] and [81] per Kenny J).
Submissions in relation to particular aspects of the hearing are discussed further below. It was submitted generally that the transcript of the hearing should reasonably be understood as revealing that the Tribunal was direct and blunt about matters that went to the heart of the Applicant’s credibility, albeit its questioning may have been perceived by the Applicant as being rude.
The First Respondent made the point that the test for apprehended bias was to be considered from the perspective of a reasonable fair-minded observer who was acquainted with and knew the role of the Tribunal and its processes, including, for example, the Tribunal’s obligation to ensure that the Applicant knew the dispositive issues on the review and had the opportunity to address them. It was said to be clear that in this case the Applicant’s credibility was the key issue for the Tribunal and submitted that hence that wherever the Tribunal had raised with the Applicant its concerns about her credibility, it was doing so in a manner in which it was entitled to proceed. In particular it was submitted that at the hearing the Tribunal had properly raised its concerns about the Applicant’s evidence and had commented on issues in relation to its doubt about whether the Applicant was providing a truthful account of her claims. The Tribunal was said to have put the Applicant on notice of dispositive issues thus satisfying its obligations under s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] and AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; [2010] FCAFC 156 at [60] per Besanko J).
As the First Respondent pointed out, the concept of actual bias on the part of a Tribunal member was considered in Legeng, in particular at [72] per Gleeson CJ and Gummow J. Their Honours stated:
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.
As their Honours remarked at [71]: “The question in not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”. It is a rare and exceptional case where actual bias can be demonstrated solely from the Tribunal’s reasons. In SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15] the Full Court of the Federal Court suggested that even if a Tribunal disbelieved every element of an applicant’s claims this would not suffice to establish bias. An allegation of actual bias must be “firmly and distinctly made and clearly proven” (ibid). It must be shown that the decision-maker has prejudged the matter and had a mind closed to any argument in support of a contrary conclusion.
The test for apprehended bias was considered by the High Court in Re Refugee Review Tribunal;Ex parte H (2001) 179 ALR 425; [2001] HCA 28. Gleeson CJ, Gaudron and Gummow JJ referred at [27] to the test of whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided, and observed (at [28]):
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be 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 was pointed out at [29], the non-curial nature of the Tribunal and inquisitorial nature of the proceedings must be taken into account. Relevantly, their Honours continued in Ex parte H at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In Ex parte H the High Court found that apprehended bias was established in circumstances where a fair-minded lay person “might well infer, from the constant interruptions of [one of the applicants’] evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal’s preconceived view that he had fabricated his account…” (at [32]).
In SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45 Rares and Jagot JJ explained at [37] that: “An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision.”
In VFAB Kenny J had made the point (at [24]) that the test apprehended bias was “more readily satisfied” that for actual bias. In that case Kenny J pointed to the inquisitorial nature of a Tribunal hearing, the control and discretion the Tribunal exercises as to how it conducts a hearing, the purpose of a hearing under s.425(1) of the Act and the need for the Tribunal to attempt to focus an applicant’s mind on relevant matters, including those adverse to his or her claims (at [77]-[80]). Kenny J stated (at [81]):
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: Galea v Galea (1990) 90 NSWLR 263 at 279-80, 283.
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.
However this must be seen in light of the discussion of the principles in relation to apprehended bias by the Full Court of the Federal Court in SZRUI.
In SZRUI the Full Court was, as here, considering the conduct of a Refugee Review Tribunal hearing. Allsop CJ (who agreed with both Flick J and Robertson J) remarked that the relevant enquiry in assessing whether an administrative tribunal such as the Refugee Review Tribunal had conducted itself in a way that displayed apprehended bias “is directed not to the correctness of the outcome, but to the apparent fairness of the process” (at [2]). His Honour continued at [3]-[5]:
Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.
The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Cmr of Police (NSW) [2005] HCA 50;224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.
I have borne in mind these remarks in considering whether apprehended bias is established, while also recognising that, as Flick J stated in SZRUI at [22], a reasonable apprehension of bias must be “firmly established” (and see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J) and not too readily accepted, that “[i]t is not sufficient if a reasonable bystander ‘has a vague sense of unease or disquiet’” (see SZRUI at [22] referring to Jones v Australian Competition and Consumer Commission (ACCC) (2002) 76 ALD 424; [2002] FCA 1054 at [100] per Weinberg J), and that the Court must apply “realistic criteria” (SZRUI at [23] and cases cited therein).
Flick J also referred to the need to take into account the context in which the decision is being made by the Tribunal conducting a hearing which may involve “robust and forthright testing” of an applicant’s claims (at [24]-[25]) as well as the need to alert an applicant to “specific aspects of [his or her] account, that the tribunal considers may be important to the decision and may be open to doubt” (SZBEL at [47]). As Flick J acknowledged (at [27]):
… 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.
In relation to the task before the Court his Honour stated at [27]:
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. (emphasis added)
In SZRUI, Robertson J also made several points of relevance to this case, including (at [75]) that the whole of the transcript of proceedings must be reviewed, rather than sentences taken in isolation. I have had regard to the whole of the transcript and have borne in mind that, as the Tribunal member told the Applicant in this case, he had the departmental file and had listened to her interview with the delegate (see SZRUI at [75]).
Relevantly, Robertson J also observed that the Tribunal was entitled to test the claims relied on (at [76]), that it was necessary to consider at what stage of the hearing impugned statements were made and any “inherent probabilities or improbabilities to which the Tribunal was reacting” (at [82]). However, as his Honour stated (at [84]) it is a:
… requirement that, until the time of decision, what the Tribunal says and does must not give rise to a reasonable apprehension of bias as that test has been explained, in relation to the Tribunal, by the High Court in Re Refugee Review Tribunal; Ex parte H” (emphasis added).
Moreover, insofar as the First Respondent relied on VFAB at [81], Robertson J (with whom Allsop CJ agreed) stated in SZRUI at [91]-[93] that:
… no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account ...
The entirety of the circumstances must be considered.
In my opinion, one of the matters to be taken into account by a properly informed lay person is that there is other language available to test, vigorously or otherwise, the claims or evidence of an applicant for refugee status than by saying “I don’t believe it” or “I can’t believe it” while asserting in definite terms how those in a foreign culture would behave.
Also to be taken into account as ascribed to the properly informed lay person, in my opinion, is that the consequence of the proceedings being inquisitorial makes the circumstances quite different to civil litigation before a judge, where the proceedings are almost invariably in public, there are parties representing their own interests and those parties are often represented by lawyers. This means that questioning and vigorous questioning by the Tribunal is not to be measured against a standard appropriate to a judge presiding over a public hearing in a court but it also means that what may be taken as vigorous testing by a judge of submissions by counsel in a court is not a valid point of comparison when considering what is said and done by a Tribunal member in relation to a claimant’s statements or other material. Indeed, in my opinion, it is liable to be a distraction to use as a comparator what in a court setting would not give rise to a reasonable apprehension of bias.
It is also necessary to bear in mind that each case turns on its own particular facts. As Robertson J stated in SZRUI at [99] in the context of considering VFAB:
It would be an error, in my opinion, to judge one set of facts against another and to reason that, because the present case may be thought to have less extreme facts than another it would or should follow that the present case does not show a reasonable apprehension of bias. In each case the question of fact must be addressed: has apprehended bias been made out in that a properly informed lay person might reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal might not have brought an impartial mind to bear on the decision in that it had, from that perspective, formed the fixed view that the applicant had fabricated his account of events upon which he based his application for a protection visa and thus that his application failed?
Finally, at [100] Robertson J addressed what was said in VFAB at [81] (set out at [47] above), indicating that this passage “is not to be read as if the qualifiers “occasional”, “momentary” “of itself” and “mere” were not there”.
Having regard to the fact that the test for apprehended bias is more readily satisfied than that for actual bias (VFAB at [24]), I have considered first whether apprehended bias is made out. I have had regard to the context in which the Tribunal hearing occurred and the applicable statutory provisions in the Migration Act, including the need for the Tribunal to put specific issues of concern to the Applicant. I have considered the whole of the transcript. The transcript is the only evidence before the Court as to what occurred at the hearing. According to the RRT hearing record in the Courtbook, the hearing went from 1:15pm to 3:40pm.
Before considering whether the conduct of the hearing as a whole was such as to establish an apprehension of bias I note that the Applicant also raised a number of other concerns. I have considered these individually and also as circumstances that may be relevant to the issue of apprehended bias.
First, the Applicant took issue with the “short” time between the hearing on 20 February 2014 and the decision of 25 February 2014, contending that the Tribunal made the decision without careful consideration.
Insofar as this involves a suggestion of a failure by the Tribunal to consider the integers of the Applicant’s claim, it is not made out. The Tribunal considered the claims made or arising on the material before it in relation to both Applicants. Its findings, including the adverse credibility finding, were reasonably open on the material before it for the reasons it gave and have not been shown to involve illogicality, irrationality or unreasonableness such as to amount to or demonstrate jurisdictional error. Further, it was open to the Tribunal to make its decision at any time after the hearing. This was not a case in which the Applicant sought or was granted additional time to provide further information. The time taken does not support an allegation of actual or apprehended bias.
The Applicant contended that during the hearing she felt prejudice and discrimination from the Tribunal member. She did not elaborate on her claim of discrimination. Her assertion about prejudice is considered as part of her claims of apparent pre-determination and apprehended bias having regard to the transcript of the Tribunal hearing. However I have borne in mind that apprehended bias is to be assessed “through the construct of the fair-minded observer” (SZRUI at [3]), not the subjective perspective of the Applicant.
The Applicant’s assertions in this respect also appeared to take issue with the “tone” of the Tribunal questioning. There is no evidence to support any claim intended to relate to the Tribunal member’s tone of voice. In any event, an assertion of a “harsh tone” is not in itself indicative of actual or apprehended bias (see SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J). The Applicant’s broader concerns about the apparent attitude of the Tribunal member as revealed in the nature of his questions and comments in the context of the hearing as a whole are considered further below.
The Applicant also claimed that the Tribunal gestured to her to stop her talking. The First Respondent submitted that to the extent the Tribunal member might have gestured towards the Applicant, it appeared that this would have been to assist the interpreter with interpreting the Applicant’s evidence. Reference was made to the fact that at page 5 of the transcript it was recorded that after the interpreter had asked the Applicant to speak in shorter sentences, the Tribunal member had told the interpreter to put his or her hand up when he or she wanted the Applicant to stop talking.
Alternatively, the First Respondent contended that if the Tribunal had gestured in such a manner, it would have been to clarify the Applicant’s evidence. It was suggested that this was apparent from an exchange at page 6 of the transcript in which, after asking whether the Applicant had any evidence of the claimed blog, to which the Applicant replied “No, because it was blocked. I have no--”, the Tribunal member apparently interrupted and clarified his concern in asking “You didn’t print any of the pages when you were doing it?”.
First, there is no evidence that the Tribunal gestured at the Applicant. As the First Respondent pointed out, there is evidence, in the exchange recorded at p.5 of the transcript described further at [81] below, that the Tribunal did intervene orally after the interpreter asked the Applicant to speak in shorter sentences. Even if the Tribunal did gesture at the Applicant to stop speaking at this point, there is nothing to indicate that she was being stopped from giving evidence or presenting arguments generally, as distinct from being asked to pause more often while giving evidence to allow the interpreter to translate. This would not be indicative of actual or apprehended bias or any other jurisdictional error.
The Applicant’s claim that the Tribunal gestured for her to stop speaking because he had made up his mind, is not borne out by the transcript. At no point was the Applicant told to stop speaking in a manner that indicated that she could not give her evidence fully.
I do note however that, contrary to any submission that there was nothing to indicate that the Applicant was not given the opportunity to respond to the Tribunal’s concerns, at the end of the hearing while the Tribunal member “summarised” the Applicant’s case as he said he saw it “at the moment”, he did not give her an opportunity to comment or respond after he concluded this “summary”, but rather said “That’s all. Thanks for coming in” (transcript, p.20). This is discussed further below.
Insofar as the Applicant claimed that the Tribunal member spent more time looking into the computer than interviewing her, there is no evidentiary basis for such a claim. The transcript of the hearing does not support a contention that the hearing was unduly brief.
The Applicant also took issue with the Tribunal’s approach to some documents she claimed she gave it. With one exception (material about the cost of registering a child born outside the family planning laws), there is no evidence before the Court as to the nature and extent of any such documents. It is, however, clear that the Applicant attempted to provide some documents to the Tribunal at the start of the hearing. The Tribunal member told her that he would hand back her documents, stating (transcript, p.1): “They’re in Chinese, I can’t read them, so what you do is you tell me what they are with the aid of the interpreter and then after we’ve discussed them, then you can give them back to me”. However no opportunity was afforded to the Applicant to tell the Tribunal what these documents were. The Tribunal member went on to explain the nature of the hearing and the criteria for a protection visa.
The only subsequent discussion of “documents” in the possession of the Applicant occurred at transcript, p.17 when the Applicant volunteered that she had “some material” from a Chinese language website about what it cost to register a child born outside the Chinese family planning laws. The Tribunal member told her to read it and he would “take note of it and that’s how we’re going to do it”. The manner in which he rejected the content of the information cited by the Applicant is considered below. Contrary to what the Tribunal member said at the start of the hearing, there is nothing in the transcript to indicate that the Applicant was given the opportunity to return this particular material to the Tribunal or that she was otherwise given an opportunity during the hearing to describe the content of any documents she had sought to submit to the Tribunal. While there is no suggestion that the Tribunal failed to have regard to particular evidence in a manner constituting jurisdictional error, the Tribunal member’s failure to otherwise afford the Applicant any opportunity to describe or provide documents she produced at the start of the hearing is part of the factual matrix relevant to the allegation of apprehended bias considered in light of the conduct of the hearing as a whole.
After the Tribunal member described the criteria for a protection visa, he explained to the Applicant that at the hearing they were going to talk about her circumstances, that she would tell him why she did not want to go back to China and that he would look at her circumstances and determine whether they fell within the criteria and that “after our conversation today, I will be thinking whether (sic) you and your son are at risk of harm if you go back to China” (transcript, p.2, emphasis added). Such a statement is consistent with the remarks of Flick J at [27] and Robertson J at [84] in SZRUI. However it is necessary to consider whether what the Tribunal member went on to say and do during the hearing nonetheless gave rise to a reasonable apprehension of bias. The question of an apprehension of bias requires review of the whole of the transcript (SZRUI at [75] per Robertson J) bearing in mind the remarks of Allsop CJ in SZRUI at [3]-[5].
The Tribunal member informed that the Applicant that he had listened to her interview with the delegate (transcript, p.3). He asked her why she did not wish to go back to China. She claimed, in effect, that she would be subject to persecution (by being jailed) as a member of the “underground” Local Church and fined for breach of family planning laws or even sterilised (transcript, p.3).
The Tribunal asked the Applicant about her attendance at a Local Church in Australia and why she did not go to such a church during her first four years in Australia to which she responded (transcript, p.3):
A. INTERPRETER: When I first arrived, I was not familiar with – I was looking for Local Church. When I just arrived, I know it’s actually not a church but a small venue without any signs. In China, Local Church is banned. I cannot find it, I thought also it is banned here.
After this response, the hearing continued (transcript, p.4) with the Tribunal expressing disbelief of this explanation as follows:
Q: Maybe when you first arrived, but not for four years after you’ve been here. If you had any access to the internet or press or talked to anybody, you would have found out that we don’t have banned churches here. Did you have access to a computer and the internet?
A. INTERPRETER: I had no access in my first two years.
Q. Have you ever heard of an internet café?
A. INTERPRETER: Internet café?
Q. No, you haven’t heard or an internet café? It’s a place where they have computers and you go and use them. You pay them a fee and then you use their computers.
A. INTERPRETER: Normally I search on Chinese websites. I rarely search on English websites.
Q. What language were you studying in when you came to Australia?
A. INTERPRETER: English.
Q. Ever heard of Google?
A. INTERPRETER: I heard about it. My Google is Chinese version. I never used English version (emphasis added).
The manner in which the Tribunal expressed itself in this exchange amounted not only to an assertion of disbelief of the Applicant’s explanation, but also a definite assertion as to what she “would have found out” if she “talked to anybody” (cf. SZRUI at [92]). It is necessary to consider whether such statements by the Tribunal member (of which this was but one) should, in the context of the hearing as a whole, be “understood as expressions of difficulty with the evidence and request for further assistance” and an instance of “robust, vigorous questioning” or whether the Tribunal member’s initial expression of disbelief indicated that he had reached a fixed conclusion, at least in this respect, before the completion of the hearing (see Allsop CJ in SZRUI at [4]).
The Tribunal then rephrased its concerns about the Applicant’s explanation in more tentative terms as follows (transcript, p.4):
Q: I’ll think about what you just said but I think there are very few young people your age who: (a) can’t use a computer, (b) haven’t heard of Google and can’t use Google. The reality is that all you have to do is type in “Local Church”. I assume you knew how to use those two words since you were studying here in English. You would have instantly got all the information you required to find a church and join one if you had any interest in such an activity. So even though you stated that you couldn’t find one and you weren’t able to, I may decide that you didn’t go to a church because you had no interest in such an activity.
A. INTERPRETER: Because I cannot find it, I felt it was also banned in Australia. Then I confirmed it was opposed in Australia. I asked my classmates in relation to Christianity and the Local Church. They all opposed it, so I thought in Australia they do not exist.
Q: I’ll think about what you said. I may not believe you. If you were able to travel here and study and live independently, I think you’re competent enough to find a church, especially one as easy to find as the Local Church. So what changed in 2012?
In this part of the exchange the Tribunal member raised, in a robust but unobjectionable manner, his concerns about the truth of this explanation in indicating that he “may” not believe the Applicant, given that he thought she was competent enough to find a Local Church. Again, this must be considered in the context of the hearing as a whole.
It appears that the Applicant then began to respond to the Tribunal member’s question about what changed in 2012, but the interpreter asked if she could speak in shorter sentences (transcript, p.4). In this context (relevant to the Applicant’s concern about the Tribunal member’s use of hand gestures) the member made remarks that appeared to be addressed to the interpreter (transcript, p.5):
Q. Start again. No, it’s going too long. Maybe when you’ve heard enough and you want the applicant to stop talking, put your hand up. Tell her in Chinese what I just said so that we get some rhythm here.
As indicated, this part of the transcript does not support the Applicant’s claim that the Tribunal member stopped her talking (as distinct from slowing her down). The Applicant then started to address events of 2012.
After the Tribunal member clarified that his concern was about the circumstances in which the Applicant found the Local Church in Australia in 2012 (rather than other events of 2012), she claimed she had overheard people coming out of a church “talking about gospel”. This explanation was the subject of the Tribunal’s comments at transcript p.19, discussed at [123] below.
The Tribunal member then questioned the Applicant about her claims that she had been blogging from 2009 to 2012 and that a friend in China had been arrested and given a caution in 2012 for blogging about the Local Church. In that context the Tribunal member asked the Applicant if she had any evidence of her blog and (uncontentiously) explained that “with regards to your blogging, we’ve only got your word for it. There’s no documentary evidence as far as I can tell to support the claim, is that right?”. The Applicant agreed.
The hearing continued (transcript, p.6):
Q. To do a blog, would you say you had to be fairly computer literate to be able to set up a blog and keep it updated?
A. INTERPRETER: Understanding computer is the only thing I should do is just to log in on website. I rarely do it because I use my friend’s computer.
Q. What was your purpose in having this blog?
A. INTERPRETER: To pass on message to my colleagues and Christians in my country.
Q. Yet you still couldn’t find a church to express your religious beliefs for four years after you came here.
A. INTERPRETER: Could you repeat?
Q. You were so active on the net and yet you weren’t able to find a church where you could express your religious beliefs. So on the one hand, you’re extremely capable, on the other hand, you’re extremely incompetent. So which one were you?
A. INTERPRETER: Which one is the competent, which one is that?
Q. Well, you were very capable in communicating with your religious community in China, you blogged, you sent information, you did things, but you were hopeless at trying to find your religious community in Australia.
A. INTERPRETER: First I rarely use computer because I do not have time serving all night. Second, I do not know how to use it. I only use the Chinese worship and I cannot offend it in Australia (emphasis added).
There was, undoubtedly, a degree of sarcasm or rudeness in the manner in which the Tribunal member expressed himself in this exchange, in particular in asking the Applicant whether she was “extremely capable” or “extremely incompetent”. While this does not of itself establish a reasonable apprehension of bias, it is part of the factual matrix to be taken into account (SZRUI at [90]-[92] per Robertson J).
The Tribunal member then asked the Applicant about her claim that she had been working “all night” (her explanation for rarely using the computer) and questioned her about her working hours and earnings. She claimed she worked 10 hours a day sometimes six and a half days a week. However, in response to a question as to how many weeks a year she worked, she said (transcript, p.7):
A. INTERPRETER: If they have job, I’d do my job. If they do not have any jobs available, I stay at home looking for job.
The Tribunal member’s response to the apparent inconsistencies in this part of the Applicant’s evidence was expressed in direct terms, as follows (transcript, p.7):
Q: But you said that you were working all the time, you didn’t have time to get on the internet, and you said you were serving people and you worked in a private factory. So which is it?
While blunt, this remark was in response to what could be seen to be clearly inconsistent evidence.
The Applicant then claimed that she had looked for jobs, that there were none available, but that she had sometimes worked in a restaurant as well as the factory (transcript, p.7).
After the Applicant explained that she was no longer working and that she and her child were financially supported by the Red Cross, the Tribunal member asked her about the father of her child. She claimed that he had left her because he opposed her application for protection and because his family put pressure on him and did not support them (transcript, p.8). She claimed she last saw him in July 2012 and that she did not know where he was and could not contact him. She talked about her family circumstances and low income in Australia. The Tribunal member raised issues with the Applicant about her evidence to the delegate (in particular about her father, his troubles with the police and his financial difficulties) in circumstances where there was also evidence that she had brought $30,000 to Australia. In that context he put to her (transcript, p.10, lines 6-10):
Q. It’s quite odd that your father is declared bankrupt and your mother had access to $30,000 which is a lot of money to save anywhere and especially in rural Fujian.
A. INTERPRETER: But probably she borrowed money, I did not know. I was studying six days per week, I didn’t take any notice.
As the First Respondent submitted, in this part of the hearing the Tribunal member asked the Applicant questions and raised issues about her evidence in a manner which properly alerted her to its concerns, in particular in relation to perceived inconsistencies in her claims about past events. The fact that the Tribunal member did so in this manner is not indicative of actual or apprehended bias. The Applicant was given the opportunity to respond.
However of more concern is the following exchange in which the Tribunal asked (transcript, p.10):
Q: Why did you get pregnant and have a child if your financial situation was so difficult?
A. INTERPRETER: At that time, his father was doing a little bit of job. It was accident.
Q: Everybody says it was an accident but I mean, what does it mean it was an accident? Were you having sexual relations with each other?
A. INTERPRETER: Yes, we have.
Q: So what happened on that particular day which led to your pregnancy? Presumably the other times it didn’t. What was the accident?
A. INTERPRETER: I don’t really understand.
Q: So if you’re having sexual relations, I’m assuming that you’ve taken some precautions not to get pregnant, considering that you weren’t married and there were implications if you did (sic) pregnant. So did you take precautions not to get pregnant?
A. INTERPRETER: Sometimes yes, sometimes no. That’s my first boyfriend.
Q: So what birth control did you use?
A. INTERPRETER: Condom.
Q: So the night when your son was conceived, what happened? Did you not use a condom or did something else happen?
A. INTERPRETER: Sometimes we use condom. If he ejaculate outside, then that was what happened.
Q. So how long were you and the father together?
A. INTERPRETER: Let me think. One year, four months (emphasis added).
This was undoubtedly insensitive questioning about the circumstances in which the Applicant became pregnant. While “mere” insensitivity to an applicant will not “of itself” give rise to a reasonable apprehension of bias or establish actual bias (see VFAB at [81]), it is another part of the factual matrix to be taken into account in determining whether a properly informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision (see SZRUI at [99]). It is necessary to consider the remark that “Everybody says it was an accident” and the manner in which the Tribunal member asked about the “accident” and “precautions not to get pregnant” on “the night when your son was conceived” as part of all the circumstances and in light of what occurred elsewhere in the hearing (in particular as discussed at [94]-[112] below), in considering whether a properly informed lay observer might reasonably apprehend as a matter of possibility (real and not remote) that the Tribunal member had reached a fixed conclusion before the completion of the hearing (see SZRUI at [99]).
Immediately thereafter the Tribunal member also made clear that he had a concern about the truth of the Applicant’s claim about the reasons her relationship ended. Again, he did so in blunt terms, as follows (transcript, pp.10-11):
Q. He stayed around all through your pregnancy?
A. INTERPRETER: Yes.
Q. Why do you think he did that and then decide to leave you just when you had a child?
A. INTERPRETER: After I had this child, my father asked for few hundred thousand as a gift from his family, but his family reject it. His parents, his mother asked him to leave me so need they do not need to pay this large amount of money. His father has some illness and cannot be excited, otherwise is life-threatening.
Q. Yes, but how long was your ex-partner here for?
A. INTERPRETER: He arrived in May 2008.
Q. So he’s been here for a long time just as you’ve been, and he’s been living independently from his parents just as you have. So really, you’re grown-up people and you’re having a relationship and a child, who cares what your parents think? It’s not like you’re little children and you have to obey them.
A. INTERPRETER: My father is at home. His parents stay at home. Sometimes they communicate with each other. The child’s father knows our family requested money gift, so his father got angry and hospitalised.
Q: Yes, I think you’re missing my point. My point is that you haven’t been dependent on your parents or under their influence for a really long time. So you’re adults doing adult things. Living together, being in a defacto relationship, having a child together. I mean, that sort of behaviour doesn’t suggest to me that you really are particularly concerned as to what your parents’ opinions are and how you should living (sic) your life. So it doesn’t make sense to me that you have a child together and then because his mother is arguing with your father or some dispute over payment of money, all of a sudden the relationship is off and he’s running away.
A clear note of sarcasm and dismissiveness and a degree of cultural insensitivity is apparent in these remarks by the Tribunal. The hearing continued (transcript, p.11):
A. INTERPRETER: It’s not possible not to consider our parents’ ideas because they gave birth to me and raised me up.
Q: Yes, but if you were so concerned about your parents and their reaction to your lifestyle choices, why did you get into a relationship and have a child and do all those things that have got you now into a situation which you are?
A. INTERPRETER: I said already this child is an accident. We did not plan it. It’s very cruel if I terminate my pregnancy.
Q: Look, I’ll think about it but maybe it’s not an accident. Maybe you had a child with a person that you had a relationship with because you wanted to. Maybe you knew what the consequences would be and you were prepared to deal with them because you wanted this child. Maybe you didn’t get married and you had the child and possibly you went to this church because you’d heard that if you did all those things, you might get a protection visa.
A. INTERPRETER: Never did I have such idea. Never I thought about it. I thought so complicated instance before.
In this part of the hearing the Tribunal was raising its concerns with the Applicant about the possible motivations for her actions without expressing or indicating a concluded view.
However, again, the Tribunal member continued in a manner which does raise concerns as to whether having regard to the whole of the hearing his expression of views was such as to give rise to a reasonable apprehension that he might not have brought an impartial mind to bear on the decision and that he had formed the view before the completion of the hearing that the Applicant’s claims were fabricated to obtain protection based on the fact that “many, many, many” other cases were “identical” (see SZRUI at [27], [84] and [99]). The Tribunal stated (transcript, pp.11-12):
Q. See, the thing is that your situation is very common. I have personally dealt with many, many, many cases that are identical to yours.So we have quite a few applicants, young women, been here for a few years. After four or five years of not being able to find the local church, they suddenly find it. In the meantime, they’ve all sent things back to China which has been found by the authorities and that’s going to get them into trouble. They meet a boy at this Local Church and they have a child together and then he runs away. I think if you go to the Local Church which you do go, you would maybe have met some other people in similar circumstances as you are.
In fact, just recently I received some photographs which are almost identical to the ones you’ve given the Department when a person was baptised in that particular bathtub. So who is guiding you with this protection visa application? Who is telling you what to do and what to say? Let her interpret and then continue.
A. INTERPRETER: Before I found agent in the newspaper, he or she also helped me, told me what kind of form I need to complete, and then he or she lodged it but I know that is illegal.
Q: Yes, he or she must have assisted many applicants because, again because I do these cases all the time, the submissions are almost identical. They even look exactly the same. The format is the same. So who is this person? What’s this person’s name?
A. INTERPRETER: The name is Michael. After I paid money, this person disappeared.
Q: That’s very annoying because he has disappeared from your life but obviously he’s linking up with other young women in similar situations to you because he’s providing an almost identical submission for them. So what paper does Michael advertise in and get his customers? (emphasis added).
After a discussion of the contact details for “Michael”, what the Applicant paid him and what he did for the payment, the following exchange occurred (transcript, pp.12-13):
Q: So he filled in the form and what, he did the statement?
A. INTERPRETER: What is statement?
Q: This thing that you gave with your application, did he do it for you?
A. INTERPRETER: He asked me to write down the persecution I incurred, my few stories and for the … (not transcribable) … he will do that for me.
It is the case that, after an adjournment, the Tribunal member told the Applicant (transcript, pp.13-14):
Q: The issue with Michael is actually beyond just – it’s not really about you and your case, it’s more like whether he’s making money out of doing a job that he’s not registered to do. I don’t think he’s a registered migration agent, so he shouldn’t be charging people like you money to put in a couple of pages of statement. Anyway, if there’s to be any sort of investigation into the activities of Michael, it won’t relate to you if you know what I mean. He seems to be charging a lot of money too and like I said, he tends to provide a very similar statement for every one of his clients.
A. INTERPRETER: Maybe he knows a lot of people but he now just deny all of them. For example, a few, a few apples went off in a basket, can you say all the apples in it are rotten?
Q: No, and in fact every case is assessed on its merits because even registered migration agents quite often have very distinct styles which they apply to every case they work on. So I won’t be drawing any negative inferences because your statement and the statement I read for the case last week is almost identical. Also, the statement becomes less significant over time because now you have had two opportunities to present your case in your own words. So in the end, your case will succeed or fail because of your evidence. It’s just that this person shouldn’t be making money from an activity he’s not registered to do.
A: INTERPRETER: I already lost one chance. This is my last one. I wish you take good consideration of my case.
Q: Yes, I will.
A: INTERPRETER: Don’t always negative and suspicious.
Q: I do have doubts about your credibility but that doesn’t mean that that’s the only thing I’m thinking about your case. Now, I want to talk to you about your religion. I’m going to list some sources that I’ve consulted and then I want to get some details about your beliefs…
However this explanation by the Tribunal member did not address the asserted similarity between the Applicant’s case and what the Tribunal described as “many, many, many cases that are identical to yours”.
Several issues arise in relation to these exchanges.
The Applicant submitted that in putting to her that she had the child (and possibly went to the Local Church) because she had heard if she did these things she might get a protection visa, the Tribunal member had revealed pre-judgment based on his own “presumption” and that he was not interested in listening to what she had to say in the hearing because he had already made up his mind that he would reject the application.
She submitted that, despite the fact that the Tribunal member may have dealt with a case similar to her case, he could not simply completely deny her claims.
The Applicant claimed that at that point in the hearing she sensed that the Tribunal member was “carrying on with a very angry tone”. She stated that she had made the remark about the Tribunal being “always negative and suspicious” because she could “sense” that the Tribunal member was angry. She claimed that from the very beginning of the hearing the Tribunal member had appeared to be unpleasant and annoyed.
The First Respondent acknowledged that the Tribunal’s questioning of the Applicant about the circumstances in which she conceived was somewhat unusual and perhaps insensitive. The solicitor for the First Respondent accepted that being questioned about one’s sex life might be confronting and uncomfortable for an applicant. It was submitted however that the possibility was clearly on the Tribunal member’s mind that, contrary to what the Applicant had claimed, her pregnancy was intentional and had occurred in the context of an ongoing relationship. This issue was said to be relevant to the Applicant’s claims generally. It was submitted that in such circumstances the Tribunal had to put the Applicant on notice of its concerns.
In particular it was submitted that the Tribunal’s questioning related to whether the pregnancy was planned or whether precautions against pregnancy had been taken. It was said to be understandable that the Tribunal member would raise these issues when it was trying to determine the circumstances in which the pregnancy occurred, on the basis that, for example, if the Applicant had been taking no precautions against pregnancy, it would have been disingenuous to suggest that the pregnancy was completely unplanned and unexpected.
The First Respondent submitted that the Tribunal had not “gone off on a frolic” that was completely irrelevant or indicative of apprehended or actual bias. Rather, while perhaps engaging in questioning that may be insensitive or offensive to some people, the Tribunal was said to have pursued a relevant line of questioning that it was required to ask about.
The First Respondent also pointed out that the Applicant had not responded by saying that she felt uncomfortable answering the line of questioning. It was acknowledged that had she done so this would not have been determinative, but also suggested that this was an applicant who on several occasions during the hearing had raised with the Tribunal member that she felt that he was being biased or negative and in this sense was willing to speak up.
It was pointed out that in the subsequent exchange, the Applicant had responded to the Tribunal member’s suggestion that “maybe it’s not an accident” as she claimed) and that she did not marry, and had the child and possibly went to the Local Church because she had heard that if she did all those things she might get a protection visa.
The First Respondent submitted that it was necessary for the Tribunal to express these concerns in the hearing having regard to its inquisitorial function. It was contended that the Tribunal had invited the Applicant to comment and that this indicated that the Tribunal member was not so fixed in his view that it was incapable of being altered.
The First Respondent also submitted that while it was apparent that the Tribunal had applied a rigorous test in relation to the Applicant’s evidence, this was within its ambit, particularly as the Applicant’s credibility was in issue (see Ex parte H at [30]).
Insofar as the Tribunal member raised with the Applicant the fact that he had seen “identical” claims in other matters, the First Respondent pointed out that ultimately this did not factor into the Tribunal’s reasoning. It was also suggested that it appeared that the Tribunal member was expressing a concern about the activities of “Michael”. It was conceded that the fact that these issues were not relied on in the Tribunal’s reasons would not be determinative in relation to whether there was an apprehension of bias, but contended that insofar as it was possible that the Tribunal was considering adopting such a line of reasoning, it was necessary for it to raise issues of concern with the Applicant.
The First Respondent also suggested that the Tribunal had explained that its concern was not about the effect of the existence of similar claims on the Applicant’s case and had told her that each case had to be considered on its merits. It was contended that the transcript had to be read in its entirety and that even if when this part of the exchange at the hearing started a fair-minded observer might have thought that it may give rise to an apprehension of bias, any such apprehension was dissipated once the Tribunal explained its concerns further.
However, the transcript reveals that the Tribunal had expressed earlier disbelief of the Applicant’s explanation for her delay in attending the Local Church in Australia and then engaged in very direct questioning in relation to the circumstances of the conception of the Applicant’s child (which could be seen as personally offensive and intrusive). While the Tribunal member did not express a concluded view as to whether the Applicant had engaged in conduct of falling pregnant, not marrying, and finding and attending a Local Church solely to support her protection visa claim, he went on to state that the Applicant’s situation was very common, that he had personally dealt with “many, many cases that are identical to” the Applicant’s case and that he had recently received almost identical photographs of a person baptised in the “particular bathtub” depicted in the photographs the Applicant said showed her baptism. He then asked her about who was “telling her what to do and say”. This clearly implied that he was of the view that her claims were not genuine and were manufactured.
While the Tribunal member did retreat from any implication that he may have regard to the fact the Applicant was assisted by “Michael” and stated that he would not “draw any negative inferences because [the Applicant’s] statement and the statement [he] read for the case last week is (sic) almost identical”, this did not address the possibility that from the perspective of a reasonable lay observer the Tribunal may be seen as having pre-determined the issue of whether the Applicant’s claims were “contrived” having regard in particular to his reference to the Applicant’s situation being “very common” and his statement that he had dealt with “many, many, many … identical” cases (as distinct from “similar” claims). This went beyond the issue of Michael’s involvement and the fact of one almost identical written statement in one other case from which the Tribunal member said he would not draw any negative inferences. The Tribunal member had also made the point (not restricted to one other case) that “I do these cases all the time, the submissions are almost identical. They even look exactly the same. The format is the same” (transcript, p.12). Notably, he made these remarks despite the fact that the Applicant had not provided written submissions, either to the Department or the Tribunal.
The Tribunal member’s eventual explanation that no negative inference would be drawn because the Applicant’s statement (clearly a reference to her written statement) “and the statement I read for the case last week [was] almost identical” left open the real possibility that a fair-minded lay observer would be of the view that the asserted similarity between the Applicant’s claims and those of “many, many, many” others and the manner in which the Tribunal member questioned her in these exchanges indicated that he had made up his mind not to believe her before the hearing was completed (notwithstanding his statement to the contrary towards the end of the exchange set out above).
I accept that, as the First Respondent submitted, the fact that the Applicant then suggested to the Tribunal member that he was “always negative and suspicious” does not in itself establish apprehended bias, which is to be determined objectively. I also accept that as a matter of procedural fairness it was appropriate for the Tribunal to raise issues of concern with the Applicant and that it is necessary to consider the hearing as a whole. However the concerns raised by these exchanges are not overcome by what occurred in the rest of the hearing.
The Tribunal member put information about the Local Church to the Applicant and asked her about Local Church beliefs. In the course of this exchange he raised concerns about her understanding, including her failure to explain the practice and the meaning of “pray reading” in a manner consistent with on-line information about Local Church belongs and practices. This was entirely appropriate. The Applicant appeared to demonstrate little knowledge of apparently fundamental aspects of the beliefs and practices of the church to which she claimed to belong. The Tribunal member gave her several opportunities to address various concepts, rephrasing questions she appeared not to understand or where she missed the point. Any mild frustration or annoyance exhibited by the Tribunal member in this part of the hearing is not indicative of actual or apprehended bias. Indeed he ultimately acknowledged that there may be different views on whether it was compulsory for those in the Local Church shout or call on the name of the Lord (transcript, p.16, lines 35-37).
The Tribunal member then asked the Applicant if she had made any inquiries as to what it would cost her to register her child in China. As indicated, this was the only point at which there was a reference to particular documents produced by the Applicant (transcript, p.17). The exchange was as follows:
A. INTERPRETER: I have some material.
Q. I can’t read Chinese, so you read it. No, she’s an interpreter. You read it and I’ll take note of it and that’s how we’re going to do it.
A. INTERPRETER: A city called Chan Lu in Fujian, a couple gave birth to another child. The fine is 720,000 RMB.
Q. What’s that paper from? What’s that source?
A. INTERPRETER: From a website.
Q: So how do I know it’s reliable? It’s the most outrageous amount I’ve heard, 720,000 Yuan.
A. INTERPRETER: It’s a registered website.
Q: Well, I’ve got my own sources and I’ll tell you what the fine will be for you depending on your circumstances. I’m not really interested what you got off some website because I don’t know how reliable it is. And certainly if they’re saying they will charge you – that they will charge you, that they would charge 720,000 yuan, then I know it’s wrong.
A. INTERPRETER: You can check other Chinese website.
Q: Have you actually made any real inquiries? Have you gone to the consulate or have you contacted the authorities in China, explained your situation and asked them how much it will cost to register your son?
A. INTERPRETER: At least 50,000.
Q: Who told you that?
A. INTERPRETER: The administrative office in our village.
Q: Have you contacted them directly?
A. INTERPRETER: My father contacted them.
Q: That’s not what you said before.
A. INTERPRETER: What does this mean?
Q: You said that you contacted a friend of yours in China and she told you that what she had heard is that it would be about 50,000.
A. INTERPRETER: I didn’t say this before, and you didn’t ask me this.
Q: Not to me, to the delegate when you explained your circumstances. I will go through it quite quickly because it doesn’t seem to me that you’ve really done any genuine research into the subject.
The hearing continued (transcript, p.18):
Q: Now, your background is a rural background, so according to the latest figures, your fine could be between 26,720 and 40,080 Yuan. So have you heard of those sort of figures before?
A. INTERPRETER: No. You do not understand China. You shouldn’t rely on the common people’s life instead of the official websites. My mother has one more child, me, my younger brother, and he got a fine of 100,000 Yuan.
Q: I think my sources are probably more reliable than your sources, which are anecdotal sources you gather from people you’ve spoken to. Anyway, look, we’re not talking about something very mysterious. According to an article I read a few weeks ago on 9 January 2015 in the New York Times, which is a very reputable newspaper, the government collects billions of Yuan per year with regards to these family planning provisions. So your situation is not unique, you haven’t done something remarkable.
There are a lot of people who aren’t following those regulations. They do, they have more children or whatever their situation is. They pay the fine and life goes on. Virtually every Chinese person that I speak to in relation to my job, they all come from two or three children families. I mean, it’s as if there is the law, people don’t want to follow it and they go ahead and break it knowing that they will incur a fine, which they will pay, and then they continue with their lives. So is that what you’re doing?
A. INTERPRETER: I cannot afford those fines.
Q. Just the money alone that you paid to get these documents would have gone a long way to paying that fine, so if you could afford to do this, why can’t you afford to pay the 5000 to $7500 that you’ll owe for your son?
A. INTERPRETER: I borrowed money from my friend.
It is not clear what the “documents” were that the Tribunal member said the Applicant had paid for, apart from the information from a Chinese language website. The Applicant contended that while she had submitted some material in relation to the impact of family planning laws, the Tribunal “wouldn’t even bother looking into it” and had the “suspicion” that she submitted a fake document. As indicated, there is no evidence before the Court as to exactly what information the Applicant submitted and insufficient evidentiary basis to support any claim that the Tribunal failed to have regard to evidence or to make inquiries in a manner constituting jurisdictional error.
As the First Respondent acknowledged, the Tribunal member was (again) quite blunt in the way that he explained that he was not going to rely on the Applicant’s information, which he considered to be unreliable and that he would be relying on country information (which he went through in some detail).
In itself this part of the hearing is not such as to establish actual or apprehended bias. The Tribunal member’s “outrageous” remark has to be seen in the context of the amounts in the country information he put to the Applicant (which were substantially lower) and the manner in which he put a range of possible fines to the Applicant. Nonetheless, the Tribunal member’s dismissive approach to the evidence the Applicant sought to put before him, his apparent impatience and certainty that he could tell her what the fine “will be” for her (depending on the circumstances) and his apparent lack of interest in the website information (and failure to ask about the source of the website) is part of the context in which he then went on to express his views about the Applicant’s claims in a manner that gave her no real opportunity to respond (see SZRUI at [91]-[93]).
After a discussion of whether the Applicant could afford to pay any fine, the Tribunal continued (transcript, p.19):
Q: That’s all the issues that I need to talk to you about. Is there anything else you want to tell me at this stage before I summarise your case as I see it at the moment?
A. INTERPRETER: From the beginning until now, I feel even before he started, he takes negative attitude toward me. In the middle, how do I see this? He seems wearing a colourful glass toward me.
Q: If you're saying that I have a biased approach to your case, my intention is to be as open-minded as I can be. The delegate refused your application because he didn’t believe you. He thought you were lying. There are aspects of your story which I find difficult to believe. You’re an independent person studying in a different country, blogging and looking after yourself, but quite bizarrely you can't google two words to find your church for four years until you're mysteriously in some takeaway and you hear people shouting the Lord’s name or something above you.
I mean, that story in itself is preposterous. [Applicant] you didn’t find a church because you weren’t looking for one. Anybody who is interested can find it, and that’s the bottom line. I mean, it’s too ridiculous to say that you wanted to find a church but couldn’t find it. I mean, you're an intelligent human being, of course you can find one. Then there's the coincidence of finding a church and joining a church at the same time that you're applying for a protection visa. That raises doubt. Is it coincidence or is it contrived?
A. INTERPRETER: In April 2012, my blog was blocked by the police. They, they were searching me at my home, then I realised how serious it is.
Q: I doubt that there was a blog. if there was, we would have had some trace of it somewhere on the net or you would have had some evidence to indicate that you did have a blog. I think it’s fair enough that you should feel that there was what you called the negativity here, but credibility is a central issue in your case. Your application was refused by the department because essentially the delegate thought you were lying, and I've got some doubts as to whether you are a credible witness as well.
I have doubts that you have a genuine interest in this religion and that you're going to the church because you're a genuine Local Church member. I have doubts that you’ve given me an entirely truthful account of your financial situation. I'm not sure that what you’ve told me about your relationship with the father of your child has been entirely truthful. I have questions as to whether you decided not to get married with the father of the child because of some belief that it might enable you and all of you, possibly the three of you, from getting a protection visa or permanent residence.
A. INTERPRETER: Sorry, Member, could you repeat.
Q: Yes. I have questions as to whether you decided not to marry the father of the child because you thought it would enable you to get a protection visa.
A. INTERPRETER: I know now you totally denied and I have a death penalty in your hand, you have a pen and a piece of paper but for me and for my child, there is two lives.
Q: [Applicant], I don’t believe you are quite the victim of circumstance that you make out. I think you’ve got more control of the situation than you're letting on. If you were indeed the radical Local Church blogger and activist that you claim to be, then I don’t think you would have waited four years to find a church and four years to seek a protection visa. I think that maybe somewhere around 2012, you started figuring out what you needed to do to increase your chances of staying here permanently.
A. INTERPRETER: I do not have such big [not transcribable] you think too evil.
Q: Too evil?
A. INTERPRETER: You think I have a lot of…
Q: No, actually certainly not evil. I don’t actually have a strong opinion about you personally as a person. I'm just looking at the evidence you’ve presented and assessing whether you're a credible person or not. If I find that you're not credible, it won't be because I had deep feelings about you or what you're doing. It will just be that the evidence says to me that it’s probably contrived to get a visa. That’s all. So thanks for coming in.
A. INTERPRETER: Thank you for this.
Q: I'm sorry if you found the process unpleasant.
A. INTERPRETER: I wish you make a decision. This is the last chance for me and for my child.
Q: So please collect your things and leave when you’re ready so I can switch off the equipment.
A. INTERPRETER: Thank you. (emphasis added)
The First Respondent submitted that while in this part of the hearing the Tribunal member had expressed his concerns in very strong terms, it was relevant that this had occurred at the end of the hearing. It was submitted that until that point the Tribunal member had heard from the Applicant and had put his concerns to her about some of the evidence and had not expressed a concluded view. It was submitted that it was only at the end of the hearing, having heard all of the Applicant’s evidence, that the Tribunal member put to her that her story was “preposterous” and, in effect, that she could not be believed. It was submitted that the timing of these remarks was critical, as they were made after the evidence had essentially “closed”. It was also submitted that it was relevant that the Tribunal member had not raised these issues unprompted, but rather in response to the Applicant suggesting that the Tribunal member was biased and had been negative throughout the whole hearing. It was contended that the Tribunal member was simply explaining to the Applicant why it might be that he had been negative throughout the hearing.
The solicitor for the First Respondent reiterated that the test for apprehended bias was to be considered from the perspective of a reasonable fair-minded observer who was acquainted with and knew the role of the Tribunal and its processes, including, for example, the Tribunal’s obligation to ensure that the Applicant knew the dispositive issues on the review and had the opportunity to address them. It was submitted that it was clear that in this case the Applicant’s credibility was the key issue for the Tribunal. It was contended that seen in that context, whenever the Tribunal member had raised with the Applicant his concerns about her credibility, he was doing so in a manner in which he was entitled to proceed.
However, while this exchange occurred at the end of the hearing, as Robertson J pointed out in SZRUI at [84]: “until the time of the decision, what the Tribunal says and does must not give rise to a reasonable apprehension of bias” and as Flick J indicated at [27] “[t]he reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process” (emphasis added).
In this part of the hearing, while the Tribunal member suggested he was summarising the Applicant’s claims as he saw them “at the moment”, much of what he then said in a lengthy statement was expressed in absolute and definite terms making it clear that he did not believe aspects of her claim. It may be that the Tribunal member was justifying the “negativity” to which the Applicant referred, but he indicated that he would “summaris[e] your case as I see it at the moment”. In any event if, as the First Respondent submitted, the Tribunal member was providing an explanation for why it might be that he had been “negative” throughout the hearing, such negativity goes towards establishing apprehended bias by suggesting he had reached a fixed conclusion that there was nothing the Applicant could say to change his view.
The Tribunal member did not give the Applicant any meaningful opportunity to respond to or address the “concerns” and views he expressed, such as would have been expected of a Tribunal member who had not made up his or her mind that the Applicant’s story was “preposterous” and not to be believed. Contrary to the First Respondent’s submission, the evidence had not “closed” while the hearing was taking place. Nor was this the first occasion in the hearing on which the Tribunal member had expressed his disbelief in definite terms (albeit that at some other times he had expressed more tentative views). This “summary” by the Tribunal would not have been understood by the fair-minded observer as “expressions of difficulty with the evidence and requests for further assistance” (SZRUI at [4] per Allsop CJ). The Applicant did not have the opportunity to respond after the Tribunal member completed his “summary”.
I have borne in mind that, as Flick J stated in SZRUI at [27]:
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. (emphasis added)
Having regard to the hearing as a whole, I am of the view that rather than this being a case in which the expression of tentative views enhanced the ability of the Applicant to be properly heard, in this case a properly informed lay person might reasonably infer from the whole of the hearing, including the manner in which the Tribunal member challenged the Applicant’s truthfulness and the plausibility of her account and the definite manner in which he expressed his views, that there was nothing the Applicant could say or do to challenge his pre-conceived view that she had contrived the events upon which she based her application to obtain a protection visa.
The transcript of the hearing as a whole reveals that rather than “an apparently fair and dispassionate hearing” (SZRUI at [4] per Allsop CJ), the hearing afforded to the Applicant involved several exchanges in which the Tribunal member went beyond the proper expression of tentative views and robust testing of her claims in a manner which gave rise to a reasonable apprehension that he had reached a fixed conclusion and was “really not prepared to change those views no matter what may be further said by [the Applicant]” (SZRUI at [27] per Flick J).
In particular, the Tribunal member expressed disbelief about aspects of the Applicant’s claims on several occasions from relatively early in the hearing, albeit that he at times later rephrased his concerns by suggesting that he “may not” believe the Applicant. He was at times sarcastic or rude in a manner which went beyond what was necessary to test the Applicant’s claims and in circumstances where there was other language available to test her evidence or claims (see Robertson J in SZRUI at [91]-[93]). The Tribunal member’s insensitive questioning about the circumstances of the conception of the Applicant’s child must be seen in light of his later remarks about the “many, many, many, cases that are identical to [the Applicant’s]”. The fact that the existence of “identical” claims in other matters did not form part of the Tribunal’s reasoning in its statement of decision and reasons does not overcome the fact that, seen in the context of the whole hearing, including the manner in which the Tribunal member “summarised” the Applicant’s “story” as “preposterous” and indicated that, in effect, she could not be believed, was such that the fair-minded lay observer might reasonably apprehend as a matter of a real possibility that the Tribunal member might not bring a fair and impartial mind to the making of the decision (Re H, and SZQHH at [37], SZRUI at [99]) and that there was nothing the Applicant could say or do to change the Tribunal member’s preconceived view that she had contrived her claims provided in support of the application in order to obtain protection visas (see Re H at [32]).
Apprehended bias is made out. Hence it is unnecessary to consider the allegation of actual bias. The matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 8 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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