CATCHWORDS
IMMIGRATION - judicial review - application for protection visa - Refugee Review Tribunal conducting de novo review rather than accepting findings of fact made by differently constituted Tribunal in earlier review - whether de novo review outside the terms of the remitter by the Federal Court of “the matter” to the Tribunal - whether Tribunal estopped from conducting de novo review - whether failure to provide review mechanism that was fair, just, economical, informal and quick - whether Tribunal failed to act according to substantial justice and the merits of the case - whether failure to comply with “procedures” required by the Migration Act 1958 - whether improper exercise of power - whether error in applying the “real chance” test to the “facts as found” - whether decision affected by bias - relationship between ss 420 and 476 of Migration Act 1958.
ESTOPPEL - issue estoppel - whether doctrine of issue estoppel applies to Refugee Review Tribunal - Migration Act 1958 s 416.
ADMINISTRATIVE LAW - whether Refugee Review Tribunal biased against applicant - test for reasonable apprehension of bias compared with requirements for proof of actual bias.
Migration Act 1958 ss 416, 420, 425, 476
Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, FCA/Olney J, 23 May 1996
Asrat v Minister for Immigration and Ethnic Affairs, unreported, FCA/O’Loughlin J, 23 August 1996
Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, FCA/FC, 18 September 1996
Thanh Phat Ma v Billings (1996) 142 ALR 158 (FCA/Drummond J)
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 (FCA/Hill J)
Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, FCA/Sackville J, 17 April 1997
Yao Jing Li v Minister for Immigration and Multicultural Affairs, unreported, FCA/Foster J, 24 April 1997
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 (FCA/FC)
Commonwealth v Sciacca (1988) 17 FCR 476
Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87 (Hill J)
Blair v Curran (1939) 62 CLR 464
Comcare Australia v Murphy, unreported, FCA/O’Loughlin J, 13 February 1996
Repatriation Commission v Nation (1995) 57 FCR 25 (FC)
Repatriation Commission v O’Brien (1985) 155 CLR 422
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 387
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 (FCA/FC)
- 2 -
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
McPhee v Bennet (1935) 52 WN (NSW) 8 (FC)
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 (Davies J)
Zakinov v Gibson, unreported, FCA/North J, 26 July 1996
Livesey v New South Wales Bar Association (1983) 151 CLR 288
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248
Ramadan v New South Wales Insurance Ministerial Corporation, unreported, NSW/CA, 7 April 1995
Re JRL; Ex parte CRL (1986) 161 CLR 342
Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 (Einfeld J)
Singh v Minister for Immigration and Ethnic Affairs, unreported, FCA/Lockhart J, 18 October 1996
Wannakuwattewa v Minister for Immigration and Ethnic Affairs, unreported, FCA/North J, 24 June 1996
SUN ZHAN QUI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 346 of 1996
Lindgren J
Sydney
6 May 1997
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No NG 346 of 1996
GENERAL DIVISION )
BETWEEN:
SUN ZHAN QUI
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Lindgren J
PLACE: Sydney
DATE: 6 May 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) No NG 346 of 1996
GENERAL DIVISION )
BETWEEN:
SUN ZHAN QUI
Applicant
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Lindgren J
PLACE: Sydney
DATE: 6 May 1997
REASONS FOR JUDGMENT
TABLE OF CONTENTS
INTRODUCTION.............................................. 2
CHRONOLOGICAL OUTLINE OF PROCEDURAL BACKGROUND............ 3
RELEVANT PROVISIONS OF THE ACT........................... 17
SUMMARY OF GROUNDS RELIED ON BY MR SUN AND OF
CONCLUSIONS REACHED ON THEM.............................. 21
REASONING................................................ 29
Ground 1."that procedures that were required by [the]
Act ... to be observed in connection with the
making of the decision were not observed":
para 476 (1) (a) of the Act (para 3 of amended
application for an order of review)............. 29
1.1 Sections 420 and 476....................... 29
1.2 Section 416................................ 48
1.3 Principles of issue estoppel and
Repatriation Commission v Nation (1995)
57 FCR 25.................................. 58
1.4 Sun's legitimate expectations;
unnecessary delay and expense.............. 68
1.5 Mr Sun's mental condition.................. 70
1.6 Unfairness and unjustness.................. 74
1.7 Generally.................................. 74
Ground 2."that the decision was an improper exercise
of the power conferred by [the] Act ...":
para 476 (1) (d) of the Act (para 4 of
amended application for an order of review)..... 75
Ground 3."that the decision involved an error of law,
being an error involving an incorrect
interpretation of the applicable law or an
incorrect application of the law to the facts
as found by the person who made the decision,
whether or not the error appears on the record
of the decision": para 476 (1) (e) of the Act
(para 5 of amended application for an order of
review)........................................ 76
3.1 Did the Smidt Tribunal incorrectly apply
the law to the facts as found by it?....... 76
3.2 Are the principles in Guo "the law
applicable to the finding of facts ..."?... 77
3.3 Is the Smidt Tribunal's fact finding
process reviewable?........................ 80
3.4 Did the Smidt Tribunal incorrectly apply
the law in relation to the "real chance"
test?...................................... 85
3.5 Did the Smidt Tribunal incorrectly
interpretor apply the law in relation to
to disqualification for reasonable
apprehension of bias?...................... 89
Ground 4."that the decision was induced or affected by
... actual bias": para 476 (1) (f) of the Act
(para 6 of amended application for an order of
review)........................................ 95
4.1 Actual bias - the law...................... 95
4.2 Reasons for Decision of the Smidt Tribunal. 95
4.3 Nineteen suggested bases for inference of
actual bias.............................. 111
4.4 Other matters relied on as evidence of
actual bias............................... 178
4.5 Conclusions on actual bias................ 182
Ground 5."that there was no evidence or other material
to justify the making of the decision": para
476 (1) (g) of the Act (para 7 of amended
application for an order of review)............ 183
CONCLUSION.............................................. 184
INTRODUCTION
The applicant ("Mr Sun") applies, in exercise of the right given to him by s 476 of the Migration Act 1958 ("the Act"),
for review of a decision of the Refugee Review Tribunal ("the RRT" - I will use "RRT" as a generic expression, and will use different forms of abbreviation to refer to the RRT as it was constituted by a particular member on a particular occasion). That decision was given by the RRT as constituted by Ms Smidt ("the Smidt Tribunal" - I will refer to Ms Smidt as "the Member"), on 1 April 1996 ("the Smidt Decision").
CHRONOLOGICAL OUTLINE OF PROCEDURAL BACKGROUND
Mr Sun arrived in Australia by air from Papua New Guinea on 16 December 1993, without a passport or other travel document, but with a note reading:
"I am from China. I have to seek political asylum in Australia. Help me please".
Upon arrival in Cairns, he informed a senior migration inspector that he had, in April 1993, using "false" documents, travelled from China to Hong Kong and from Hong Kong to Papua New Guinea. He also told the inspector that he had destroyed his false Chinese passport by flushing it down the toilet in the transit lounge at Port Moresby airport before boarding the flight from Port Moresby for Cairns; that he had not possessed a visa for Australia when he left Port Moresby; that an airline official in Port Moresby had allowed him to board the aircraft without a visa; and that he had destroyed his boarding pass by flushing it down the toilet on the aircraft. He claimed that his correct name was "SUN ZHAN QUI" and that
he had been using the name "SUN JIANG" for the past four years to avoid detection. He said that his date of birth was 23 August 1971.
Mr Sun was interviewed by a compliance officer from the Department of Immigration and Ethnic Affairs ("the Department") on 21 December 1993. On 23 December, he completed a form of "Application for Refugee Status in Australia". The application was deemed by reg 2A.5 of the Migration (1993) Regulations to be also an application for a Domestic Protection (Temporary) Visa ("DPTV") and a Domestic Protection (Temporary) Entry Permit ("DPTEP"). It was a criterion of the grant of a DPTV or a DPTEP that an applicant be determined by the Minister to have refugee status. The application was lodged with the Department on 30 December. The ground of the application was that Mr Sun had a well founded fear of being persecuted in China for reasons of political opinion (cf the definition of "refugee" in Article 1 of the Convention Relating to Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967). Mr Sun's case was and is that his fear arises out of his involvement in pro-democracy activities in China, in Beijing between April and June 1989, and in Foshan between June 1989 and April 1993, and out of the response of the Chinese authorities to such activities.
On 11 February 1994, a delegate of the respondent ("the Minister") decided that Mr Sun was not a refugee. That decision was an "RRT-reviewable decision" as defined by sub-s 166B (1) of the Act. Five days later, on 16 February, Mr Sun filed an application for review of that decision with the RRT. That application was heard by the RRT as constituted by Mr A Fordham ("the Fordham Tribunal") on 17 March.
The Fordham Tribunal gave its decision ("the Fordham Decision") on 14 May. The Fordham Tribunal said that many aspects of Mr Sun's account of his departure from China and of his transit through Hong Kong and Papua New Guinea were "implausible". In fact, it concluded that Mr Sun's account of his journey from Hong Kong through Port Moresby to Australia was "fabricated", although possibly for well-intentioned reasons. The Fordham Tribunal did not attempt to determine why the fabrication had occurred because it regarded the question of Mr Sun's "mode of departure" as irrelevant to the issue posed by the definition of "refugee" in the Convention. Importantly, the Reasons for the Fordham Decision contained the following sentence:
"The Tribunal accepts the Applicant's accounts of his involvement in prodemocracy activities in Beijing from 15 April 1989 to 5 June 1989 and his account of his prodemocracy activities in Foshan as credible." (at 12)
As will be seen later, this passage assumes some importance in the present case. Mr Sun would characterise it as a finding of fact in his favour. Without prejudging the issue, I will use the neutral, if clumsy, expression, "the Fordham Credibility Acceptance" to refer to this passage.
The Tribunal also accepted that Mr Sun had a fear of persecution for Convention reasons. However, after carefully considering the question whether that fear was well founded, the Tribunal concluded that it was not. It found that Mr Sun's role was that of a minor participant in large demonstrations and rallies; that he had not been involved in the organisation of them, did not know who the organisers were and could not remember who the speakers were; and that his presence at them was of no particular significance. The Fordham Tribunal made other findings adverse to Mr Sun on the issue whether his fear was well founded. Its conclusion was as follows:
"Conclusion
The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant [sic] claims and particular circumstances and measured them against the independent evidence before it the Tribunal finds that the fear is not well-founded as there is no real chance of persecution and the consequences the applicant fears are both remote and insubstantial." (at 17)
Mr Sun did not apply for review of the Fordham Decision at that time. Apparently, he sought Ministerial intervention. When this was unsuccessful, arrangements were made for him to leave Australia. For that purpose, he needed a passport. At first he refused to sign a form of application for a passport for lodgement by the Department with the Chinese Embassy, but some time later, on 4 July 1994, he partially completed such a form and provided it to the Department. On the form, Mr Sun filled in the spaces provided for his name, sex, date and place of birth, marital status and the names of his parents. In the space provided for "Brief history of applicant" he wrote (as translated):
"(a)Previously in China.
(b)April 1993 - December 1993 PNG.
(c)93-94 in Australia."
However, Mr Sun did not provide details of his home address in China, previous passport, occupation, work address or description.
On 8 July, the Department forwarded the form to the Embassy of the People's Republic of China in Canberra together with a covering letter requesting the Embassy's assistance in the issue of a travel document in order that Mr Sun might "return to China as soon as possible". The letter included the following:
"In addition to the information stated in his passport application Mr Sun has made the following claims regarding his origins and identity:
* Born 23/08/71 in Guangzhou, China.
* Home address: 159 Hai Zhu Rd., Guangzhou.
* His only family members are parents: SUN Hui,
58 years of age (father) and Ll Nai, 54 years (mother). Both reside at the address above.
* Previously worked in a toy factory in Foshang, [sic] Quantong province.
* Departed China on or about 21 April 1993 for Hong Kong using a passport in the name of SUN Jiang."
On 16 August 1994 a Mr Ciu of the Consulate of the People's Republic of China telephoned a Mr Browne of the Department and advised him that it had not been possible to identify Mr Sun from the information he had provided on his application form.
Mr Sun elected not to supplement the information. Instead, on 12 October, he lodged an application dated 7 October for the issue of a "protection visa (866)". "Protection visas" had been introduced by the Migration Reform Act 1992 which had amended the Act in this and other important respects with effect on and from 1 September 1994. In the statement of grounds in his application, Mr Sun referred to his fear of persecution "as already documented"; asserted that his previous application should not have been rejected and that the Fordham Decision was "legally flawed"; explained that he had been unable to apply to this Court for review of the Fordham Decision because he had been "held in detention" at the Immigration Detention Centre at Villawood and because he had lacked the means of funding legal assistance; and finally claimed that the failure of the Chinese authorities to issue a passport to him pursuant to his application dated 4 July had amounted to a refusal by them to provide him with protection, and that this refusal itself supported his claim to be a refugee. On 24 November, the Minister's delegate refused Mr Sun's application.
On 28 November, Mr Sun applied to the RRT for review of that decision. This second application to the RRT for review of a decision of a delegate was heard by the RRT as constituted by Ms Kay Ransome ("the Ransome Tribunal") on 1 May 1995. At the hearing Mr Sun gave evidence and was represented by a migration agent, Ms Marion Le. On 24 May, the Ransome Tribunal gave its decision ("the Ransome Decision").
It is necessary at this point to digress to note ss 50 and 416 of the Act. Section 416 (the full terms of which are set out later) gave the Ransome Tribunal a discretion in relation to the Fordham Decision: the Ransome Tribunal was not required to consider any "information" which had been "considered" by the Fordham Tribunal, and was empowered to "have regard to, and to take to be correct, any decision" that the Fordham Tribunal had "made about or because of that information." Section 50 contained a virtually identical provision applicable to the antecedent stage of an application to the Minister for a protection visa. It provided that in the case of successive applications for such a visa, the Minister had the same discretion in relation to information considered in the earlier application or applications and in relation to any earlier decision which the Minister had made about or because of that information.
The Ransome Tribunal noted that neither Mr Sun nor his representative had placed any new information before it in relation to the original application made in December 1993, and that the only new information which had been placed before it related to the refusal by the Chinese authorities to issue a passport. The Ransome Tribunal decided not "to reconsider any information considered in that earlier application and to take the decision ultimately made on that application to be correct." The Ransome Tribunal so decided expressly by reference to s 50 rather than s 416. It was subsequently to be common ground that in relying on s 50 rather than s 416, the Ransome Tribunal had erred in law. As will be seen later, Mr Sun submits that the expression "the decision ultimately made on that application" as used by the Ransome Tribunal, refers to, or necessarily encompasses, what I have called the Fordham Credibility Acceptance.
The Ransome Tribunal was not satisfied on the material before it, and in view of the incompleteness of the information which Mr Sun had provided to the Chinese authorities, that the failure of those authorities to issue a passport down to that time amounted to a "refusal" to issue one. The final paragraph of the Reasons of the Ransome Tribunal was as follows:
"Until such time as the applicant provides to the Chinese Consulate the information required there is no evidence before the Tribunal upon which it could decide that he has been refused a passport. Accordingly, there is no evidence before the
Tribunal upon which it could make a finding that the applicant is a refugee and the decision under review must be affirmed."
The Ransome Decision was expressed as a finding that Mr Sun was not a refugee and it affirmed the delegate's decision denying him a protection visa.
On 22 June 1995, Mr Sun filed an application in this Court (proceeding NG 443 of 1995) for review of both the Fordham Decision and the Ransome Decision. In so far as the application related to the Fordham Decision, it sought review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). In so far as it related to the Ransome Decision, it sought review under the Act. On 21 August, Hill J granted Mr Sun the necessary extension of time pursuant to s 11 (1) (c) of the ADJR Act within which to apply for review of the Fordham Decision.
The application for review of the two Decisions came before Beaumont J for hearing on 23 and 24 August. On 23 August, his Honour made orders, by consent, setting aside the Ransome Decision and remitting "the matter" to the RRT "for fresh hearing in accordance with law".
The course of events which took place in relation to the Fordham Decision assumed importance on the hearing before me. His Honour raised with the parties the question whether the application to set aside the Fordham Decision should be stood over "pending the outcome of a fresh hearing of the second matter [the matter remitted] by the [RRT]." His Honour then noted that "[b]oth parties opposed this, relying on s 416 of the Act." The terms of s 416 appear later in these Reasons for Judgment. At present, it suffices to note that s 416 would empower the RRT, when hearing the remitted matter, not to reconsider information which had been considered by the Fordham Tribunal, and to "have regard to, and take to be correct, any decision that the [Fordham Tribunal] made about or because of that information." After giving an account of s 416, Beaumont J concluded:
"For this reason, although not without some misgivings on my part, the hearing of the application to review the first decision proceeded." (at 3)
However, his Honour suggested to the parties that the following question only should be dealt with at that stage in lieu of a full review under the ADJR Act:
"Whether having regard to the material before the Tribunal the first decision of the Tribunal [the Fordham Decision] is so unreasonable that no reasonable person could have made it." (at 4)
That a decision is "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power" is a form of "improper exercise of power" that is a ground of review under the ADJR Act (see paras 5 (1) (e) and 5 (2) (g) of the ADJR Act) but is not a ground of review under the Act (see para 476 (2) (b) of the Act).
By consent, his Honour made an order for the determination of that separate question. In his Honour's Reasons for Judgment dated 29 August 1995, he recorded that "the subsequent development of the arguments advanced by the parties indicated some possible complications in attempting to separate out one issue in a case of this complexity" (at 4-5), and that the preliminary question was "limited to material actually, rather than constructively, before the Tribunal" (at 5). His Honour concluded (at 51) that, while it was inappropriate that he express a final view on the question, Mr Sun had demonstrated that it was at least arguable that the Fordham Decision was manifestly unreasonable. His Honour identified seven aspects of unreasonableness in the Reasons for Decision of the Fordham Tribunal.
His Honour lastly addressed the question of the appropriateness of his answering the separate question finally at that stage. He said:
"Were it not for the presence of s 416 of the Act, I would have no doubt that it was not appropriate for the court to have embarked upon the present hearing." (at 56)
His Honour concluded as follows:
" ... a Court has already ordered that the matter be remitted to the Tribunal for fresh consideration.
It will now do so in the knowledge that, for the reasons I have given, the Court is of the view that the first decision [the Fordham Decision] was arguably bad for the grounds stated.
I could not and would not wish to pre-judge any question that may arise in terms of an attempt to apply s 416 but, if necessary, that question can be addressed were it to arise. In my view, considerations of principle and convenience point to my doing no more at this stage than expressing the provisional view on the first decision that I have expressed. In the scheme now contemplated, the whole matter will be returned to the Tribunal for fresh consideration. If necessary, at some later stage, the jurisdiction of the Court may be invoked for the purpose of the Court giving a final answer to the question posed in the separate question. For those reasons I make the following orders:
(1) That the separate question be answered as follows:
Q. Whether, having regard to the material before the Tribunal (for this purpose it is agreed the material before the Tribunal are exhibits 'A' and 'H'), the decision is so unreasonable that no reasonable person could have made it?
A. Although it is arguable that the first decision of the Tribunal was 'manifestly unreasonable' in the sense described in the Minister for Aboriginal Affairs v Peko Wallsend Limited [(1986) 162 CLR 24] at 41 per Mason J, it is not necessary or desirable that the question asked be answered finally at this stage;
(2) Stand the matter over for mention on 31 August 1995 at 9.30 am with a view to fixing a further date for an extended directions hearing;
(3) Costs reserved." (at 57-58, first two underlinings supplied)
His Honour had in mind the possibility that the RRT, when dealing with the remitted matter, might exercise the discretion given by s 416 in relation to information which had been before the Fordham Tribunal and in relation to a
"decision" of the Fordham Tribunal "made about or because of that information". His Honour accepted that it would be unfortunate if the discretion were to be exercised by the RRT, and it subsequently transpired that the Fordham Tribunal had relevantly fallen into error. His Honour seems to have accepted that in the absence of s 416, or if the RRT dealing with the remitted matter did not exercise the discretion given by that section, the remitted matter would be heard de novo, in which event it would transpire that there would have been no utility in his dealing with the application for review of the Fordham Decision under the ADJR Act. If the result on the hearing of the remitted matter were to be the grant of a protection visa, any review by his Honour of the Fordham Decision would be shown to have been otiose. But against the possibility that the result might again be the refusal of a visa following exercise of the s 416 discretion, his Honour's proceeding to hear the application for review of the Fordham Decision might have utility.
It seems fair to say that in answering Question 1 in the way in which he did, Beaumont J cautioned against a too ready invocation of 416 in relation to the Fordham Decision on the hearing of the remitted matter.
The fresh hearing by the RRT of the remitted matter was conducted by the Smidt Tribunal on 18 December 1995. Mr Sun was represented by Ms Marion Le, migration agent. Mr Sun's position was that Ms Smidt must not conduct a full de novo
review of his case on the merits, and that Beaumont J had instructed the RRT to take to be correct the Fordham Credibility Acceptance as a finding of fact. The Smidt Tribunal referred to the terms of his Honour's order dated 23 August 1995 and to his Reasons for Judgment and correctly observed that no support whatever was to be found in either document for this submission. The Smidt Tribunal decided "not to rely on s 416, but to conduct a full de novo review of the decision to refuse Mr Sun a protection visa" (Reasons for Decision, p 5).
The review took the form of a de novo review of the material which had been before the Fordham and Ransome Tribunals together with additional material which the RRT had obtained subsequently, and a consideration of written submissions made by Ms Le on behalf of Mr Sun. It also included an oral hearing on 18 December 1995. Mr Sun attended the hearing, as did Ms Le. The Member explained that she had "serious doubts" about some of Mr Sun's claims and wished to explore these with him and give him the opportunity of giving explanations. Mr Sun declined to answer virtually any of the questions put to him by the Member. It should be noted that Dr Bruce A Stevens, Clinical Psychologist, had expressed in a report the opinion that Mr Sun suffered from post traumatic stress disorder and a major depressive disorder. After the hearing, the RRT obtained further material relevant to Mr Sun's claims and there was correspondence between the RRT and Ms Le relating to the claims and the Member's concerns.
On 1 April 1996, the Smidt Tribunal decided that Mr Sun was not a refugee and was not entitled to a protection visa.
On 26 April, Mr Sun commenced the present proceeding. By his amended application filed on 24 May 1996, he seeks the following relief in relation to the Smidt Decision:
"1. An order setting aside the Decision.
2. An order declaring that the Applicant is a refugee within the meaning of the Refugee Convention and has a right to be processed on the basis that he is a refugee.
3. Alternatively, an order remitting the Decision to the Tribunal, differently constituted, for reconsideration according to law.
4. An order that the Respondent pay the costs of the Applicant."
RELEVANT PROVISIONS OF THE ACT
PART 7 (ss 410-473) of the Act is headed "REVIEW OF PROTECTION VISA DECISIONS". It is common ground that the delegate's decision on 24 November 1994, being "a decision to refuse to grant a protection visa" (the decision which had been the subject of the review by the Ransome Tribunal), was an "RRT-reviewable decision" (cf para 411 (1) (c) of the Act).
The Ransome Decision on review of that decision of the delegate, being a decision of the RRT, was a "judicially- reviewable decision" (para 475 (1) (b) of the Act) and Mr Sun's application to this Court for review of the Ransome Decision was made under sub-s 476 (1) of the Act. When Beaumont J made, by consent, the order remitting the matter to the RRT, he exercised the power given to the Court by para 481 (1) (b) of the Act to make "an order referring the matter to which the decision relates to the person who made the decision for further consideration, ...".
Section 416, referred to earlier, is as follows:
"416.If a non-citizen who has made:
(a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
(b)applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;
makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:
(c)is not required to consider any information considered in the earlier application or an earlier application; and
(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."
As noted earlier, this section had, relevantly, the effect that the Smidt Tribunal was not required to consider any "information" which had been before the Fordham Tribunal, and was entitled to have regard to, and to take to be correct, any "decision" that the Fordham Tribunal had "made about or because of that information."
Division 3 (ss 420-422) and Division 4 (ss 423-429) within PART 7 of the Act are respectively headed "Exercise of Refugee Review Tribunal's powers" and "Conduct of review". Mr Sun relies on s 420 which provides:
"420.(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."
PART 8 (ss 474-486) of the Act is headed "REVIEW OF DECISIONS BY FEDERAL COURT". Division 2 (ss 475-486) of that Part also bears that heading, the earlier Division 1 (s 474) being headed "Interpretation". It is common ground that the Smidt Decision, being a decision of the RRT, is a "judicially-reviewable decision" (cf para 475 (1) (b) of the Act) and that Mr Sun's present application to this Court for review of that decision is made under sub-s 476 (1) of the Act.
Sub-section 476 (1) provides that application may be made for review by the Court of a judicially-reviewable decision on any of the seven grounds described in paras (a)-(g) of that sub-section. No other grounds are specified. Moreover, sub-s 485 (1) provides expressly that in spite of any other law, including s 39B of the Judiciary Act 1903, this Court does not have jurisdiction in respect of a judicially-reviewable decision other than the jurisdiction provided by Part 8 of the Act or by s 44 of the Judiciary Act 1903 (s 44 is not presently relevant). In his amended application for review, Mr Sun relies on the grounds described in paras (a), (d), (e), (f) and (g) of sub-s 476 (1) which are, relevantly as follows:
"(a) that procedures that were required by this Act ... to be observed in connection with the making of the decision were not observed;"
"(d) that the decision was an improper exercise of the power conferred by this Act ... ;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by ... by actual bias;
(g) that there was no evidence or other material to justify the making of the decision."
It is convenient to note here that sub-s 476 (2) provides:
"(2) The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."
SUMMARY OF GROUNDS RELIED ON BY MR SUN AND OF CONCLUSIONS REACHED ON THEM
It is convenient to set out now the five grounds on which Mr Sun relies and, in outline and summary form, the conclusions which I have reached in relation to them, postponing until later, the full statement of those conclusions and the statement of my reasons for reaching them.
Ground 1. "that procedures that were required by [the] Act ... to be observed in connection with the making of the decision were not observed": para 476 (1) (a) of the Act (para 3 of amended application for an order of review).
1.1 Sections 420 and 476
Mr Sun submits that for the purposes of para 476 (1) (a), s 420 established "procedures that were required ... to be observed in connection with the making of the [Smidt] decision [which] were not observed". The first supposed procedure on which Mr Sun relies is the requirement of sub-s 420 (1) that the RRT, in carrying out its functions under the Act, is to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". According to Mr Sun's amended application for an order of review, the Smidt Tribunal did not do so in the following respects:
"(a)The Smidt Tribunal made findings of fact contrary to the findings of fact of the Tribunal constituted by Mr Fordham ('the Fordham Tribunal') in circumstances where:
(i) The decision of the Fordham Tribunal subsists (Justice Beaumont having not yet determined the challenge by the
Applicant to that decision);
(ii) the principles of issue estoppel and or [sic] the principles referred to in Repatriation Commission v Nation (1995) 57 FCR 25 prevented the Smidt Tribunal from so acting.
(iii) the decision of the Smidt Tribunal to proceed with a de novo hearing in respect of the whole of the matters considered the Fordham Tribunal, including in particular, the Applicants [sic] claims as to events in China accepted by Mr Fordham,
a. was likely to and did in fact result in unnecessary delay and expense in the resolution of the Applicant's case;
b. was contrary to the Applicant's legitimate expectation that he would not be re-exposed to adverse findings having been the subject of a favourable finding.
(iv) the Applicant's mental condition made it unfair to require him to attend a further hearing and give evidence.
(b) the Smidt Tribunal acted unfairly and unjustly in proceeding to make such findings in circumstances where it had not had the benefit (as had Mr Fordham) of observing the demeanour of the Applicant giving evidence in respect of his claim and where the Applicant was suffering from extreme depression and acute post traumatic stress disorder and thus not in a fit state to be required to provide explanations for fresh adverse matters going to those findings.
(c) Having regard to the matters particularised in paragraph 6 [para 6, referred to below, particularises an allegation of actual bias], the Smidt Tribunal went beyond the limits to which a Tribunal acting fairly and justly could reasonably go in adopting the role of an adversary rather than the role of independent and fair inquisitor."
In my opinion the better view is that sub-s 420 (1) does not
establish procedures "that were required by [the] Act ... to be observed in connection with the making of the [Smidt] decision", but, in any event, it is not shown that the Smidt Tribunal failed to provide a mechanism of review which was fair, just, economical, informal and quick.
The second alleged non-observance of procedural requirements depends on para 420 (2) (b), which requires that the RRT, in reviewing a decision, "must act according to substantial justice and the merits of the case". Mr Sun's case is that para 420 (2) (b) also establishes "procedures that were required by [the] Act ... to be observed in connection with the making of the Smidt Decision" and that they were not observed. Mr Sun repeats, as particulars of the non-observance, the particulars contained in paras (a), (b) and (c) quoted above.
In my opinion the better view is that para 420 (2) (b) also does not establish "procedures that were required by [the] Act ... to be observed in connection with the making of the [Smidt] decision", but, in any event, it is not shown that the Smidt Tribunal did not act according to substantial justice and the merits of the case.
1.2 Section 416
In my opinion, the better view is that the "decision" referred to in para 416 (d), while referring to the ultimate decision made by the RRT on the earlier application and perhaps any
finding or findings of fact essential or indispensable to that decision, does not extend to refer to other findings of fact made in the course of the determination of the earlier application, such as the findings of the Fordham Tribunal favourable to Mr Sun. In any event, the Smidt Tribunal had a discretion whether to exercise the power given by s 416 and was entitled not to exercise it.
1.3 Principles of issue estoppel and Repatriation Commission v Nation (1995) 57 FCR 25 (FC)
If the doctrine of issue estoppel applied in relation to the Fordham Decision, its effect would have been adverse to Mr Sun, since what was essential to the Fordham Decision that Mr Sun was not a refugee was the finding that his fear of persecution for a Convention reason (political opinion) was not well founded. It would be a perversion of the doctrine that it should operate in respect of the findings that Mr Sun had been involved in pro-democracy activities in Beijing and Foshan to establish before, or contribute to a finding by, the Smidt Tribunal, that his fear of persecution was well founded, contrary to the finding which the Fordham Tribunal had made on that issue.
Further, I am bound by authority to hold that the doctrine of issue estoppel does not apply to the RRT.
Repatriation Commission v Nation, supra, is not an authority against the Smidt Tribunal's power to reconsider all the evidence or against its making findings of fact adverse to Mr Sun, because Beaumont J's order of remitter to the RRT, properly understood, was of the whole matter, and did not exclude those factual issues on which the Fordham Tribunal had made findings in favour of Mr Sun.
1.4 Unnecessary delay and expense and Mr Sun's legitimate expectations
Mr Sun did not have a legitimate expectation that the Smidt Tribunal would not re-enter upon factual issues on which the Fordham Tribunal had made findings in his favour, and the Smidt Tribunal was entitled to re-enter upon those issues. For this reason and generally, the complaint of unnecessary delay and expense is not made out.
1.5 Mr Sun's mental condition
Mr Sun appeared, but did not give evidence before the Smidt Tribunal which, therefore, lacked the benefit of observation of his demeanour, an advantage which the Fordham Tribunal had enjoyed. But it was Mr Sun's decision not to give evidence, and the Smidt Tribunal went to considerable lengths to ensure that any disadvantage was overcome.
1.6 Unfairness and unjustness
This aspect of Mr Sun's claim is not made out.
1.7 Generally
There is no further consideration which establishes Ground 1. In particular, to treat the alleged non-observance of the requirements of s 420 as an error of law within para 476 (1) (e), rather than (as claimed) a non-observance of a required procedure under para 476 (1) (a), would not assist Mr Sun, because the Smidt Tribunal's conduct satisfied the relevant epithets in sub- 420 (1) and para 420 (2) (b).
Ground 2."that the decision was an improper exercise of the power conferred by this Act": para 476 (1) (d) of the Act (para 4 of amended application for an order of review).
Mr Sun gives as particulars the particulars that he gives in respect of Ground 1. The ground is not made out.
Ground 3."that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision": para 476 (1) (e) of the Act (para 5 of amended application for an order of review).
Mr Sun gives the following particulars:
"5.1Whilst the Tribunal correctly stating [sic - stated] the law applicable to the finding of facts in relation to the determination of facts for the purposes of determining an application for refugee status (see Decision pages 27 - 28), the Tribunal incorrectly applied those principles in making adverse factual findings on the Applicant's claims as to:
(a) his identity and set out in the Decision page 28.7 to 30.9 and 65.3.
(b) his tertiary entrance mark and set out in the Decision at page 31.9.
(c) his participation in the a [sic] protest at Xinhuamen on or about 19 April 1989 and set out in the Decision at 32.1, 34.9-35.3; 35.5.
(d) his participation in the protest march of 27 April 1989 and set out in the Decision at 39.3; 39.55.
(e) his involvement in the period 27 April to 3 June 1989 and set out in the Decision at 40.4.
(f) fleeing to Foshan and remaining there in hiding set out in the Decision at 42.3; 62.4
(g) participation in the pro-democracy movement and set out in the Decision at 40.6ff
5.2 The Tribunal correctly stated the law in relation to the 'real chance' test to be applied in determining whether the Applicant faxed a well-founded fear of persecution for a reason set out in the Refugee Convention but incorrectly applied that law to the facts such error of law arising in the manner described by Justice Beaumont in Guo Wei Rong v MIEA (1995) 135 ALR 421 at 433.4ff such error emerging from a consideration of the matter as a whole and by reference to the language and or concessions in the Decision at 49.6; 51.7; 54.3; 53.8; 58.9; 59.2-.5; 60.1; 60.3; 61.5; 65.6.
5.3 The Tribunal incorrectly interpreted the applicable law in relation to disqualification for reasonable apprehension of bias as set out in the Decision at 22.8.
5.4 In rejecting the application for disqualification for reasonable apprehension of bias made by the [sic] Marion Le, the migration agent of the Applicant ('the Migration Agent') on 18 December 1995 and renewed by letters dated 14 January 1996 and 9 February 1996, the Tribunal incorrectly applied the law to the facts (cf Decision 22)."
In my view,
(i) the matters referred to in para 5.1 quoted above do not represent errors of law of the kind referred to in para 476 (1) (e) since they are not particulars either of "an error involving an incorrect interpretation of the applicable law" or of "[an error involving] an incorrect application of the law to the facts as found by the person who made the decision", but, in any event, I am not satisfied that the Smidt Tribunal committed errors of either of those kinds;
(ii) the Smidt Tribunal addressed itself to the correct legal question, and none of the specific passages referred to in para 5.2 indicate a failure to apply the correct test to the facts "as found" by the Smidt Tribunal;
(iii)the Member was not obliged to disqualify herself for reasonable apprehension of bias as distinct from actual bias and, in any event, notwithstanding a linguistic slip, in substance she correctly understood and applied the test for disqualification for reasonable apprehension of bias.
Ground 4."that the decision was induced or affected by ... actual bias": para 476 (1) (f) of the Act (para 6 of amended application for an order of review).
In his amended application, Mr Sun gives extensive "particulars" of evidence from which, he submits, I should infer that the Member was actually biased against him. Later, I consider Mr Sun's case in this respect in detail, and
conclude that actual bias is not established.
Ground 5."that there was no evidence or other material to justify the making of the decision": para 476 (1) (g) of the Act (para 7 of amended application for an order of review)
In his amended application, Mr Sun simply states that:
"There was no evidence or other material to justify the making of the Decision in that the decision was based on the existence of a particular fact, and that fact did not exist."
Sub-section 476 (4) provides that the ground specified in para 476 (1) (g) is not to be taken to be made out unless para 476 (4) (a) or (b) is satisfied. Relevantly, para 476 (4) (b) reads, "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." I am not satisfied that the Smidt Tribunal based its decision on the existence of a particular fact which did not exist.
REASONING
Ground 1."that procedures that were required by [the] Act ... to be observed in connection with the making of the decision were not observed": para 476 (1) (a) of the Act (para 3 of amended application for an order of review).
1.1 Sections 420 and 476
1.1.1The case law
Mr Sun concedes (para 18 of his submissions in reply) that I
should treat the decision of Olney J in Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, 23 May 1996 ("Velmurugu") as persuasive authority against his submission that para 420 (2) (b) prescribes a procedural requirement. However, he submits that his Honour's decision is irrelevant to sub-s 420 (1). For reasons that appear below, in my view, the case for regarding sub-s 420 (1) as laying down a "procedure" is no stronger than the case for regarding para 420 (2) (b) as doing so.
In Velmurugu, Olney J said:
"... the relevant question in this case is whether the duty imposed on the Tribunal by s 420 (2) (b) can properly be classed as a `procedure' required by the Migration Act to be observed because, if that not be the case, there can be no scope within the limited grounds for review provided for in s 476 to attack a decision on the basis on which the present applicants seek to rely." (at 6)
His Honour thought that the applicants before him were, in effect, seeking a review on the merits, and that this was not open because it would be inconsistent with the legislative scheme of Part 8 of the Act, to construe para 476 (1) (a) as opening up a route by which a review on the merits could be obtained. His Honour said further that:
"... a decision on the merits of a case does not involve a `procedure' and thus could not give rise to review on the ground described in s 476 (1) (a)." (at 7)
The relationship between ss 420 and 476 has been considered in numerous later cases. In Zakinov v Gibson, unreported, 26 July 1996 ("Zakinov"), North J expressed agreement with the view expressed by Olney J in Velmurugu at p 7 noted above, which North J described as a view:
"...that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s 420 and thus cannot give rise to a review on the grounds described in s 476 (1) (a)." (at 14-15)
In Asrat v Minister for Immigration and Ethnic Affairs, unreported, 23 August 1996 ("Asrat"), O'Loughlin J discussed the relationship between para 420 (2) (b) and s 476 with reference to a hypothetical case in which material information adverse to the applicant's interests came to the notice of the RRT of which it appeared the applicant had not known. His Honour said that non-disclosure of it to the applicant would be a failure to accord "substantial justice" and would amount to an "error of law" providing a basis for the Court's intervention under para 476 (1) (e). His Honour then said:
"... that [intervention under para 476 (1) (e)], in my opinion, would be the appropriate ground. Paragraph 476 (1) (a) deals with the subject of procedures, and I do not think that a failure of the type that I have postulated would be a breach of a procedure, it would be a breach of the standards laid down in par 420 (2) (b).
It must not be overlooked that even though par 420 (2) (b) requires the Tribunal to act according to the merits of the case, this Court is not empowered to engage in an exercise of reviewing the merits. The force and effect of par 420 (2) (b) is therefore subject to that limitation in these and like proceedings." (at 9-10 - underlining supplied)
In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 18 September 1996 (FC) ("Dai"), after setting out s 420, Davies J observed:
"Although s 420 (1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be `fair' and `just'. If this has not occurred in the present case, the applicant will be entitled to seek relief under s 476 (1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed." (at 17)
In Singh v Minister for Immigration and Ethnic Affairs, unreported, 18 October 1996 ("Singh"), Lockhart J held that the case before him was distinguishable from Velmurugu and Zakinov on the basis that in those two cases, Olney J and North J, respectively, had said that the applicants were seeking a review on the merits, while in Singh the applicant was not doing so. His Honour added:
"The applicant has confined his attack on the Tribunal's decision to the conduct which, as previously particularized, is said to indicate that the Tribunal had not acted according to substantial justice and the merits of the case. The present case is thus distinguishable from these judgments of Olney J and North J.
Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s 420 (1))." (at 51-52)
His Honour continued by holding that it had not been established that the RRT member had failed to act according to substantial justice or had failed to act fairly. Importantly, for present purposes, his Honour added:
"If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s 476 (1) (a), the procedure being to act according to substantial justice in reviewing a decision." (at 52)
In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (FCA/FC), Sackville J referred to, but was not called upon to deal with, the "question concerning the relationship between the requirements of s 420 of the Migration Act and the grounds of review specified in s 476 (1) (a) of the Act, that the procedures required to be observed had not been observed".
In Thanh Phat Ma v Billings (1996) 142 ALR 158 ("Thanh Phat Ma"), Drummond J had to consider whether the RRT's failure to draw the applicant's attention to a certain cable established the ground of review provided for by either para 476 (1) (a) or (e). The contents of the cable were not adverse to the applicant who had not suffered any prejudice from not having been given a copy of it. For this reason, his Honour held that there had not been a non-compliance with the requirements of natural justice. However, his Honour went on to say that both sub-s 420 (1)'s requirement that the RRT pursue the objective of providing a mechanism of review that is "fair" and para 420 (2) (b)'s requirement that the RRT "must act according to substantial justice and the merits of the case", had the effect of requiring that the RRT comply with the demands of natural justice. In relation to sub-s 420 (1), his Honour said:
"The obligation cast by s 420 (1) on the tribunal to pursue the objective of providing a mechanism of review that is fair, in carrying out its functions under the Act, would appear to impose on the tribunal the duty to comply with the rules of natural justice in dealing with each matter that is brought before it." (at 163)
In relation to para 420 (2) (b), his Honour said:
"Once it is accepted, as I think it must be, that, in the context of s 420 of the Migration Act, the obligation imposed on the tribunal to act in reviewing decisions in accordance with substantial justice and the merits of the case does not permit the tribunal to disregard the statutory criteria governing the grant of visas [Drummond J had earlier cited Kumar v Immigration Review Tribunal (1992) 36 FCR 544 and Collins v Repatriation Commission (1980) 32 ALR 581 as authority for this proposition], it is difficult to see how that statutory requirement can involve anything other than an obligation governing the kind of procedure the tribunal must follow in applying the statutory criteria in the course of reviewing the decision. The statutory duty must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the determination are identified and considered.
I have difficulty in finding any distinction between such procedures and the requirements of natural justice." (at 164-165)
His Honour considered, however, that because of para 476 (2) (a), which excludes "a breach of the rules of natural justice" as a ground of review, there was an apparent conflict between the duties cast by s 420 on the RRT and the limited jurisdiction to review vested in this Court by s 476.
His Honour J disagreed with O'Loughlin J's view expressed in Asrat that if information adverse to the interests of an applicant came to the notice of the RRT and the RRT failed to draw it to the applicant's attention, the RRT's decision would be open to review under para 476 (1) (e) ("error of law"), although not under para 476 (1) (a) ("non-observance of required procedures"). He thought that the failure to disclose the information would be nothing more than a breach of one of the fundamental rules of natural justice and that para 476 (2) (a) would preclude review. His Honour added:
"If I am correct in thinking that s 420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s 476 (2) (a) prevents correction of the failure by the tribunal to do that, it follows that the parliament has adopted a process in which an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think this is what Parliament must be taken to have intended." (at 166).
In Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 January 1997, Hill J analysed "the relationship between section 420 and section 476 (1) (a)". After referring to relevant extracts from the Explanatory Memorandum which
accompanied the Bill for the Migration Reform Act 1992, his Honour noted the following submission on behalf of the respondent Minister:
"It is submitted on behalf of the Minister that s 420 does not prescribe a form of procedure at all or that, if it does, it was never intended to be a form of procedure breach of which would entitle an applicant to judicial review under s 476 (1) of the Act. Alternatively, it is submitted that if s 420 does prescribe a form of procedure, it does so in terms so vague and general that they could scarcely be not observed and certainly were observed in the present case." (at 483)
After noting discussion of the relationship between sub s 476 (1) and s 420 in some of the cases to which I have already referred, his Honour said that he saw no reason to depart from the views expressed by Davies J in Dai and by Lockhart J in Singh, that a failure to adopt "fair" and "just" procedures (Davies J in Dai at 17), or to accord "substantial justice to the applicant" (Lockhart J in Singh at 52), would constitute a non-observance of a procedure which was required by the Act to be observed within para 476 (1) (a). However, he also observed that "the procedural specification in s 420 is somewhat vague" and "imports no more than that the review mechanism is to be fair and just" (at 27). In particular, he said that s 420 "could never be construed as creating a form of merit review" (at 27), and that the references in the section to fairness and justice must be read subject to sub-s 476 (2) "so that, if the injustice would involve a breach of the rules of natural justice, then judicial review would be
precluded" (at 28). His Honour said: "[t]his so narrows the ambit of s 420 as to leave little scope for its operation, but that is not to say that s 420 has no role at all" (at 28). On the facts, his Honour found that the case did not fall within para 476 (1) (a) as involving a breach of the RRT's obligation to be fair or just.
In Jovicic v Minister for Immigration and Ethnic Affairs, unreported, 18 March 1997, Goldberg J seems to have regarded Drummond J as having decided in Thanh Phat Ma v Billings, supra, that the ground of review provided in para 476 (1) (e) is not made out by reference to s 420 (at 10).
In Singh v Minister for Immigration and Multicultural Affairs, unreported, 4 April 1997, Mansfield J referred to, but found it unnecessary to decide, the issue whether sub-s 420 (1) and para 420 (2) (b) laid down "procedures" for the purpose of para 476 (1) (a). Assuming that they did, his Honour found that the applicant had not established non-observance of them.
In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 17 April 1997, Sackville J followed the conclusions of Drummond J in Thanh Phat Ma on the construction of s 420 and paras 476 (1) (a) and (e) and 476 (2) (a) as they interrelated. The claim before him, like that which had been before Drummond J, was that the RRT had taken information adverse to the applicant into account without affording him an opportunity to comment on it. His Honour held that this claim was an allegation of "a breach of the rules of natural justice ... in connection with the making of the decision" which is not a ground upon which an application may be made (para 476 (2) (a) of the Act). He noted, however, that “the position may be different ... if the alleged breach is of a particular statutory requirement ... with which the RRT must comply” (at 14).
Finally, in Yao-Jing Li v Minister for Immigration and Multicultural Affairs, unreported, 24 April 1997 ("Yao-Jing Li") Foster J declined to follow the reasoning of Drummond J in Thanh Phat Ma. His Honour held that para 420 (2) (b) of the Act was not concerned with natural justice.
"... the term `substantial justice’ is concerned with the decision of the issues raised in the case rather than the process of deciding them. Considerations of natural justice focus upon ‘due process’ in the making of decisions. ... Section 420 (2) (b) mandates that the Tribunal act in accordance with substantial justice. A failure to do so would be a non-observance of a procedure required by the Act and reviewable under s 476 (1) (a). It would also, in my opinion, be a decision `not authorised’ by the Act and, pursuant to s 476 (1) (c), similarly reviewable. It is possible that it may also be reviewable under s 476 (1) (e) but I prefer to express no concluded view as to this." (at 39)
1.1.2 In view of my conclusion that Mr Sun has not established that the mechanism of review afforded to him was not "fair, just, economical, informal and quick", or that the Smidt Tribunal did not "act according to substantial justice and the merits of the case", it is not necessary for me to reach a final view on the present issue of statutory construction. Moreover, one must hesitate to add to the single judge decisions on an issue which clearly calls for authoritative elucidation at appellate level. But since the matter was the subject of detailed submissions, the authorities to which I have referred do not speak with one voice, and those authorities do not refer to some considerations which I find persuasive, perhaps I may be pardoned for indicating the view which I prefer and my reasons for preferring it.
In my respectful opinion, the better view is that neither sub-s 420 (1) nor para 420 (2) (b) establishes "procedures ... required by [the] Act ... to be observed in connection with the making of [a] decision" within the meaning of para 476 (1) (a). There are provisions of the Act which clearly do establish such procedures. Examples are to be found in para 425 (1) (a), s 426, sub-s 427 (2), sub-s 428 (4) and s 429. But sub-s 420 (1) and para 420 (2) (b) are of a different nature.
Section 420 is the first section within Division 3 dealing with the exercise of the RRT's powers. In my respectful opinion, s 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of a "procedure", which, to my mind, signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings (cf "That which regulates the formal
steps in an action or other judicial proceeding": Black's Law Dictionary (6th ed) sub tit "Procedure"). The distinction between "procedures" and "standards" drawn by O'Loughlin J in Asrat, is that which I would make.
I find it convenient now to consider the two provisions separately although some considerations are common to both.
1.1.3 Sub-section 420 (1) directs the RRT "in carrying out its function under [the] Act ... to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". A requirement that the RRT pursue an objective of providing a mechanism of review satisfying such a general description is not, in my respectful opinion, a requirement that it observe a procedure in connection with the making of a particular decision, with which para 476 (1) (a) is concerned.
This view gains support from four more specific considerations. First, the objectives referred to in sub-s 420 (1) will often be inconsistent as between themselves. In particular, a mechanism of review that is "economical, informal and quick" may well not be "fair" or "just". It is difficult to accept that the legislature intended in para 476 (1) (a) to provide a ground of review where a mechanism of review in its application to a particular case, although "fair" and "just", was not "economical", "informal" and "quick". Similarly, I do not think that the legislature intended by para 476 (1) (a) to afford a ground of review wherever the RRT provided a mechanism of review which, in its application to a particular case, was "economical", "informal" and "quick", but which might be considered to be somewhat less than "fair" and "just" in some respect.
The second consideration is derived from the nature of non-observance of the supposed "procedure" laid down in sub s 420 (1). Non-observance would be, for example, a "failure to pursue the objective of providing a mechanism of review that is fair" or a "failure to pursue the objective of providing a mechanism of review that is economical". The nature of the complaint made in a particular case might make relevant evidence of the RRT's staff and financial resources and its internal organisation and practices. A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in sub-s 420 (1), would not necessarily establish that the RRT had not been pursuing the specified objective. The difficulty, perhaps practical impossibility, of proving a failure to pursue that objective in some cases suggests that the requirement of sub-s 420 (1) was not intended to fall within the ground of review described in para 476 (1) (a).
The third consideration is founded on para 476 (2) (a) the terms of which were set out earlier. It will be recalled that that paragraph provides that a breach of the rules of natural justice is not grounds upon which an application may be made
under sub-s 476 (1). If sub-s 420 (1) requires observance of a "procedure" for the purpose of para 476 (1) (a), in so far as it refers to a "fair" and "just" mechanism of review, it must refer to "procedural fairness" - an expression synonymous with "natural justice" (see Aronson and Dyer, Judicial Review of Administrative Action, 1996, at 391). But para 476 (2) (a) provides expressly that breach of the rules of natural justice is not a ground of review. This suggests that the legislature did not intend the "procedures" of para 476 (1) (a) to embrace the standards which sub-s 420 (1) requires the RRT to pursue.
There is another argument based on para 476 (2) (a) that leads to the same result. The general law notion of natural justice comprises the "impartial tribunal" requirement (the "bias rule") and the "fair hearing requirement" (the "hearing rule"): see Aronson and Dyer, supra, at 387 ff. While para 476 (2) (a) makes clear that these requirements do not provide the basis of a ground of review, para 476 (1) (f) provides that actual bias is such a ground, while para 476 (1) (a) and para 425 (1) (a), taken together, have the effect that a failure to give a genuine opportunity to appear before the RRT to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that para 476 (1) (f) and para 425 (1) (a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in para 476 (2) (a), "the rules of natural justice", is to be read down in some way
so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules.
The fourth consideration derives from the Explanatory Memorandum which accompanied the Migration Reform Bill 1992. That Memorandum makes clear that s 476 was intended to introduce a regime of limited grounds of review which were "certain" in their meaning (see esp pp 81-82). To permit review on the ground that a mechanism of review is not "fair" or "just" is discordant with that intention.
For all the foregoing reasons, I think that the better view is that sub-s 420 (1) does not lay down a procedure required to be observed in connection with the making of a decision by the RRT. Before parting with sub-s 420 (1), however, I make the following further observation. It should not be thought that all non-observances of statutory directives addressed to a public body must give rise to a civil remedy. Statements of broad objectives to be pursued afford a paradigm illustration of statutory commands which are not intended to generate a private right of action. An example is found in s 9 of the Disability Services Act 1992 (Qld) which was considered in Criminal Justice Commission v Queensland Advocacy Incorporated [1996] 2 Qd R 118 (CA). That section provided:
"9(1)People with disabilities have the same basic human rights as other members of society and should be empowered to exercise their rights.
(2)People with disabilities have the right to -
(a)respect for their human worth and dignity as individuals; and
(b)realise their individual capacities for physical, social, emotional and intellectual development; and
(c)services that support their attaining a reasonable quality of life in a way that supports their family unit and their full participation in society; ...
(3).........................................
(4)Services, and the information necessary to support a right, should be provided in a way that is appropriate taking into account the disability and the person's cultural background.
(5).........................................."
Part 4 of the same Act comprised ss 10-24, the general nature of which is indicated by the following sections:
"10. This Part sets out the objectives to be promoted by service developers and service providers in the development and implementation of programs and services for people with disabilities.
11. Programs and services should be designed and implemented so that their focus is on developing the individual and on enhancing the individual's opportunity to establish a quality life.
12. Programs and services should be designed and implemented to ensure that ...
13. ...........................................
14. Services should be tailored to meet the individual needs and goals of people with disabilities.
15. ... - 19. ...
20. Services should be designed and implemented to ensure that people with disabilities have access to any necessary independent advocacy support so that they can participate adequately in decision-making about the services they receive."
Of these provisions, Demack J said:
"When the provisions of s 9 of the Disability Services Act 1992 are considered, it is clear that they enunciate broad principles and do not create private rights that can be enforced by court action. Part 4 of the Act sets out objectives to be promoted by service developers and service providers. It does not prescribe obligations that must be met. The sections, which follow s 9 in Part 4, or have the verb `should', indicating that what is there described are desirable goals which the community, through Parliament, has accepted. Thus, whilst it is correct ... that the Public Trustee is a service provider, ..., it does not follow that the residents have rights given by s 9 which, if the Public Trustee does not pursue, this Court or any court can authorise [Queensland Advocacy Incorporated] to pursue." (at 144-145)
Of course, it is possible to distinguish from the statutory provisions with which his Honour was concerned, the words "[t]he Tribunal .. is to pursue the objective of providing ..." in sub-s 420 (1) of the Act. The construction of any statutory provision must depend on its own terms and context. However, in my view the general sense of the passage quoted is aptly applied to sub-s 420 (1).
I do not need to resolve the issue of construction finally, because it is not shown that the Smidt Tribunal failed to provide a mechanism of review that was fair, just, economical, informal and quick. The numerous specific complaints made by Mr Sun are considered later. In particular, however, I do not think that the fact that the Smidt Tribunal embarked upon a hearing de novo shows that it adopted a mechanism of review which failed to satisfy those epithets.
1.1.4 I turn now to para 420 (2) (b). I earlier gave reasons for construing both this paragraph and sub-s 420 (1) as not laying down "procedures". In addition, the third and fourth specific considerations which I identified in relation to sub-s 420 (1) apply, with necessary adaptations, to para 420 (2) (b).
It will be recalled that sub-s 420 (2) provides that the RRT, in reviewing a decision:
"(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."
These two paragraphs are related by way of contrast. The RRT would fail to observe the command contained in para (b) if it relied on technicalities, legal forms or rules of evidence in preference to acting "according to substantial justice and the merits of the case", even if it did not regard itself as "bound by" them. This view is consistent with the following
passage from the Explanatory Memorandum that accompanied the Migration Reform Bill 1992:
"`Substantial justice' is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words."
I agree with Foster J in Yao-Jing Li that para 420 (2) (b) requires that the RRT must come to grips with the substance and merits of an application before it. His Honour said:
" ... the term `substantial justice' is concerned with the decision of the issues raised in the case rather than the process of deciding them." (at 39)
If the last part of this passage is correct, and in any event for reasons given elsewhere, with respect I disagree with his Honour's conclusion that "[a] failure to [act in accordance with substantial justice] would be a non-observance of a procedure required by the Act and reviewable under s 476 (1) (a)" (also at 39).
On the other hand, if, contrary to my view, para 420 (2) (b) lays down a procedure, it lays down a requirement of procedural fairness, non-compliance with which is not a ground of review because of para 476 (2) (a) of the Act. Again, this suggests that the legislature did not intend para 476 (1) (a) to embrace the standard which para 420 (2) (b) imposes.
I do not find it appropriate to consider whether non-observance of para 420 (2) (b) would always, or might sometimes, establish one or more of the other grounds of review referred to in sub-s 476 (1) (as to para 476 (1) (d) and (e) which are relied on by Mr Sun, see below). I note, however, that in Yao-Jing Li, Foster J relied on para (c) as well as para (a) of sub-s 476.
Again, I do not need to resolve the issue of construction finally, because, the Smidt Tribunal did act according to substantial justice and the merits of the case in connection with the making of its decision. The numerous attacks made upon the course which it followed are dealt with later. In particular, however, I do not think that the Smidt Tribunal's having proceeded by way of a hearing de novo shows that it did not act "according to substantial justice and the merits of the case."
1.2 Section 416
When Mr Sun applied for a review of the delegate's decision made on 11 February 1994 that he was not a refugee, he applied for review of an RRT-reviewable decision (para 411 (1) (a) of the Act). That application was determined by the Fordham Tribunal. When Mr Sun applied for a review of the delegate's decision made on 24 November 1994 refusing to grant him a protection visa, he again applied for review of an RRT-reviewable decision (para 411 (1) (c) of the Act). That application was determined in the first instance by the
Ransome Tribunal, but upon the setting aside of the Ransome Decision, at least the matter the subject of that application for review was remitted to the RRT and came before the Smidt Tribunal. Accordingly, the conditions of the availability of the discretion given by s 416 were satisfied, and the Smidt Tribunal:
"(c) [was] not required to consider any information considered in the earlier application [to the Fordham Tribunal] ...;
(d) [was entitled to] have regard to, and take to be correct, any decision that the [Fordham] Tribunal ... made about or because of that information."
Mr Sun submits that the Reasons for Decision of the Fordham Tribunal contain a "decision" or "decisions" in his favour which the Smidt Tribunal was bound to take to be correct. According to the submission, the supposed decision or decisions are a finding or findings of fact in his favour in relation to his involvement in pro democracy activities in Beijing and Foshan. Mr Sun emphasises, for example, the Fordham Credibility Acceptance which it is convenient to repeat:
"The Tribunal accepts the Applicant's accounts of his involvement in prodemocracy activities in Beijing from 15 April 1989 to 5 June 1989 and his account of his prodemocracy activities in Foshan as credible." (at 12)
This passage is not expressed as a "finding". There are,
however, other passages in the Fordham Tribunal's Reasons for Decision which, expressly or implicitly, constitute findings in conformity with Mr Sun's evidence, generally to the effect of this passage. The following are examples:
"The Tribunal has accepted that the Applicant was a student in Beijing at the time of the Tiananmen Square massacre and also accepts that he was involved as a participant together with the many thousands of other students in rallies and demonstrations at that time. The Applicant has provided an eyewitness account of the massacre on June 4th and 5th in Tiananmen Square. ...
The Applicant saw for himself the ruthless quashing of the demonstrations by armed soldiers and tanks but did not have the opportunity to experience at first hand the actions of the authorities in Beijing after the event or the level of involvement in the demonstrations that gave people cause to fear persecution. This being the case, the Tribunal accepts that the Applicant has fear. That fear was further demonstrated, ... when he terminated his studies and fled to Guangdong province. However, this all occurred immediately after the Beijing massacre of June 5th 1989 in a state of panic and uncertainty." (at 12-13)
"It is accepted that the Applicant carried news of proposed rallies and demonstrations to his class of thirty students and that he encouraged and went together with them on two or three occasions. However, it is clear from his account that he was in no way involved with the organisation of the actual demonstrations and, in fact, when questioned on the organisers on one occasion he stated he did not know who they were." (at 13)
"In regard to the march on the 27th of April, ... [t]he Tribunal finds that his presence ... was of no particular political significance. He was so removed from the organisers that, at the hearing, he said he could not remember who the speakers were nor did he know who the organisers were." (at 14)
"The Tribunal finds that the risk of persecution from this action [in Guangdong Province, meeting
with friends to discuss political matters and pasting articles of a political nature for the public to see] is indeed remote and insubstantial." (at 16)
"The Tribunal finds that the fact that the Applicant's parents have been questioned about his whereabouts does not, of itself, indicate a chance of persecution." (at 16)
"The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant [sic - Applicant's] claims and particular circumstances and measured them against the independent evidence before it the Tribunal finds that the fear is not well-founded as there is no real chance of persecution and the consequences the Applicant fears are both remote and insubstantial." (at 17)
The respondent submits, by reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (Mason CJ), that s 416 refers only to a decision which is "final or operative or determinative, at least in a practical sense, of the issue of fact falling for consideration" and that "[a] conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a ... decision". Those words were, as the respondent acknowledges, spoken in a different statutory context from the present one.
"The word `decision' is a word of indeterminate meaning" and its meaning in a particular case depends on context: Director General of Social Services v Chaney (1980) 47 FLR 81 (FCA/FC) at 100 (Deane J). The respondent points to the distinction
between "decision" and "reasons for decision" which, in the context of the Act, was recognised in Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 (FC) at 167 (Jenkinson J), 178 (Beazley J). The respondent also points to the distinction between a "decision" and "findings of fact" which appears in ss 418 and 430 of the Act. Finally, the respondent submits that the Member's decision not to exercise the discretion given by s 416, and, instead, to conduct a hearing de novo, was procedural rather than substantive, and that for this reason, it is not reviewable under sub-s 475 (1).
It is a sufficient answer to the last submission to note that Mr Sun does not apply for review of the decision not to exercise the discretion given by s 416 and, instead, to conduct a hearing de novo. Rather, he relies on that decision only for the purpose of establishing a ground specified in sub-s 476 (1).
Section 416 is directed to information that was considered in an earlier application to the RRT for review of an RRT-reviewable decision. It provides that the RRT need not consider the same information in the course of a second or subsequent review, as sub-s 414 (1) and paras 430 (1) (c) and (d) make clear that it would otherwise be obliged to do.
The distinction between a decision, the reasons for the decision, findings of fact, and evidence on which findings of fact are based, is common to several sections of the Act. Section 418 provides that if an application for review is made to the RRT, the Registrar of the RRT must notify the Secretary to the Department who must give to the Registrar:
"a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision."
Section 417 provides that the Minister may substitute for a decision of the RRT a decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Where the Minister exercises this power,
"he or she must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister's decision ..."
Similarly, s 430 provides that where the RRT makes its decision on a review, it must prepare a written statement that:
"(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based."
It is difficult to accept that in s 416, the expression "decision that the [RRT] ... made about or because of ... information" includes a reference to a finding of fact which was not of the essence of the ultimate decision made. Several considerations contribute to this difficulty. Firstly, the distinction which the Act recognises between a "decision" and "findings of fact", particularly in s 430, suggests, admittedly not conclusively, that in s 416 the word "decision" is used in the same sense as in s 430. It would have been a simple matter for the legislature to have referred to findings of fact in s 416, if it had intended the RRT to have the discretion to act on a finding of fact made on an earlier application for review, while not acting on the decision made on that application.
Secondly, the notion of "taking to be correct" invoked by s 416 is comfortably applicable to the notion of a "decision" on an application for review but not to a finding of fact. A finding of fact may depend upon other facts, on the impression created by a witness, and on other subtle factors. Generally, so far as the legal process is concerned, far from being thought of as being correct or incorrect, findings of fact are thought of as being invulnerable to attack, and as providing
the contours and boundaries of the factual substratum to which the law may be correctly or incorrectly applied.
Thirdly, it is, perhaps, unlikely that the legislature intended s 416 to empower the RRT to identify particular findings of fact made on an earlier occasion and to accept them as correct, while not accepting the decision or the finding or findings essential to it as correct. It is necessarily part of Mr Sun's submission that s 416 authorises the RRT to accept as correct some, but not all, the findings of fact made by the Fordham Tribunal. The difficulty which the RRT would have in distinguishing one finding of fact from another, without itself embarking upon the process of making findings of fact, suggests that the word "decision" in s 416 was not intended to refer to the making of findings of fact, at least unless they were indispensable to the decision on the earlier application.
Fourthly, the "decision" given on an earlier occasion is easily recognisable. The decisions which the RRT is empowered to make are set out in sub-s 415 (2), and, as noted earlier, they are distinct from the reasons for decision. Section 430 does not require the four elements (decision, reasons, findings and evidence) which are required to be included in the RRT's written statement to be set out or referred to in any particular form - under headings, for example. While the statement of the decision itself can be expected to be easily discernible, the same cannot necessarily be said of the
statement of the reasons, findings and the reference to the evidence. It can be expected that the statement may include findings for and against a party, and passages about which there will be argument as to whether they constitute findings at all.
The present case affords an illustration. The Fordham Decision is easily identified. It appears on the cover sheet of the "DECISION AND REASONS FOR DECISION". As well, it appears under the heading "DECISION" at the end of the document. The document contains other headings, including "CLAIMS AND EVIDENCE" and "REASONS FOR THE DECISION". There are references to the evidence under both of these headings. There are findings for and against Mr Sun, and passages about which there can be debate as to whether they constitute findings. The Fordham Credibility Acceptance itself is an illustration of a passage falling into this last category, although, as I have said, there are findings which, taken together, are to its effect.
Fifthly, s 416 seems to be addressed to all the information that was considered on the earlier application and the decision that was made about or because of all of that information. Accordingly, the section is directed to the final result on the earlier application, not a particular finding which was made in the course of the earlier Reasons for Decision based on only some of the information that was considered, and which was not essential to the result.
There is much to be said for the view that if the "decision" referred to in para 416 (d) extends to embrace findings of the Fordham Tribunal, it is only the finding that Mr Sun's fear was not well founded, since that was the finding that was essential to its decision that he was not a refugee. This construction is one which is conformity with the doctrine of issue estoppel (see later).
I need not resolve the issue of construction of s 416 finally, however, because the Member had discretion as to whether to invoke the power given by s 416. Beaumont J had intended this, although he cautioned against an unthinking exercise of the discretion to take to be correct the Fordham Tribunal's decision that Mr Sun was not a refugee on the basis of the information that had been before the Fordham Tribunal. The Smidt Tribunal decided against exercising the discretion given by s 416 and in favour of conducting a hearing de novo, as, in my opinion, it was entitled to do.
The Ransome Tribunal and the Smidt Tribunal had a discretion to "take to be correct [the] decision that the [Fordham] Tribunal ... made about or because of [the] information [considered in the application before the Fordham Tribunal]". The decision of the Fordham Tribunal adverse to Mr Sun, was made about or because of all the information, no more and no less, which the Fordham Tribunal considered. The Ransome Tribunal purported to choose to exercise the discretion and the Smidt Tribunal chose not to exercise it. The information
that was before the Fordham Tribunal did not include the information relating to the application to the Chinese Embassy for a passport that was before the Ransome Tribunal. Nor did it include additional information which was before the Smidt Tribunal relating to Mr Sun's claim of participation in pro-democracy activities in Beijing - evidence about the taking of certain photographs in Tiananmen Square, for example (see later).
1.3 Principles of issue estoppel and Repatriation Commission v Nation (1995) 57 FCR 25
1.3.1 Issue estoppel
Issue estoppel is explained by Dickson J in Blair v Curran (1939) 62 CLR 464 in the following familiar and oft-cited passage:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In
matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter [(1) (1855) 4 E. & B. 780, at p. 794 (119 E.R. 288, at p. 293), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous." (at 531-532)
The Fordham Decision was that Mr Sun was not a refugee. What was "necessarily decided" by and "legally indispensable to", that decision? It was that Mr Sun's fear of persecution for a Convention reason (political opinion) was, "not well-founded as there is no real chance of persecution and the consequences the Applicant fears are both remote and fanciful". It follows that if the doctrine of issue estoppel applies to a decision of the RRT such as the Fordham Decision (see below), it does not avail Mr Sun and in fact works against him.
The doctrine is not even attracted by the Fordham Tribunal's finding expressed in its "Conclusion", "that the Applicant has a fear and that fear is of persecution for a Convention reason", since that finding was not indispensable to its
decision that Mr Sun is not a refugee. But Mr Sun submits that the doctrine does yet further work in his aid. He submits that there was an estoppel as to the particular findings of fact as to his involvement in pro-democracy activities in Beijing and Foshan, apparently for the purpose, at least in part, of establishing before the Smidt Tribunal that his fear was well founded, contrary to the Fordham Decision. This would be to turn the doctrine of issue estoppel on its head. The doctrine, if it has scope for operation in respect of the Fordham Decision, does not assist Mr Sun.
Moreover, in my view, I am bound to hold that the doctrine is not available in respect of the Fordham Decision. There is authority that the principles of issue estoppel do not apply to decisions of the Administrative Appeals Tribunal ("the AAT") and in my opinion the considerations which have led to that view are applicable to the RRT.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 (FCA/FC), Fisher and Lockhart JJ said:
"Issue estoppel, generally but not universally seen as a rule of evidence, cannot have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act ["the AAT Act"]. Section 33 (1) (b) directing that proceedings should be conducted with little formality and technicality and s 33 (1) (c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion
that the Tribunal is entitled to consider all evidence." (at 359)
With sub-s 33 (1) of the AAT Act referred to in this passage may be compared s 420 of the Act noted earlier.
In Commonwealth v Sciacca (1988) 17 FCR 476 a Full Court of this Court referred to the passage quoted above and said:
"If the view is taken that issue estoppel is a rule of law (which may now be the more acceptable view), that would not conclude the matter, as is apparent from what was said by their Honours, because of the administrative nature of the Tribunal and the provisions of s 33 (1) (b) of the Administrative Appeals Tribunal Act which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel." (at 480)
In Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87, Hill J discussed at length the question of the applicability of the doctrine of issue estoppel to the AAT:
"... it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue... The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s 25(4) of the [AAT Act]. In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s 33 of the AAT Act. In reviewing decisions referred to it, the Tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-
maker: s 43(1) of the AAT Act. If the Tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s 43(1).
...
The Tribunal's function, like that of the Taxation Boards of Review which it, inter alia, replaced, is ... merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration, what the Tribunal considers that position to be.
In relation to the Taxation Boards of Review, Kitto J in W J & F Barnes Pty Ltd v Commissioner of Taxation (Cth) (1957) 96 CLR 294 at 315 said:
'The Board's decision was not, of course, an adjudication; it was administrative in character and could not create an issue estoppel.'
The Full Court of this Court in Commonwealth v Sciacca (198) 17 FCR 476 at 480 had no hesitation in saying: 'A finding by an administrative tribunal will not give rise to an issue estoppel.'
... the question arises whether the process by which an administrative tribunal ... may ever involve an adjudication in the strict sense of that word. ... No doubt, if the exercise by an administrative tribunal did involve an adjudication, a question would arise as to whether that would involve an impermissible exercise of Commonwealth judicial power ...
...
No doubt, if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal expires without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision created an issue estoppel." (at 96-98)
With sub-ss 25 (4) and 43 (1) of the AAT Act referred to by Hill J may be compared sub-ss 414 (1) and 415 (1) and (2) of the Act. In Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68, Davies J accepted that issue estoppel, as distinct from cause of action estoppel, does not apply to the AAT (at 78).
The course of authority has not, however, been all one way or without criticism: see the discussion and cases referred to in Hall, "Res Judicata and the Administrative Appeals Tribunal" (1994) 2 AJ Admin Law 22, and McEvoy, "Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: a Square Peg Into a Round Hole?" (1996) 4 A J Admin Law 37; and see Lambidis v Commissioner of Police (1995) 37 NSWLR 320 (CA). Recently, in Comcare Australia v Murphy, unreported, 13 February 1996, at 11-13, O'Loughlin J, after referring to "minor reservations about the subject", treated himself as bound by the decisions of the Full Court of this Court, to hold that the doctrine did not apply to the AAT. The question was also discussed, but without the necessity of resolution, by Cooper J in House v Department of Defence (1996) 65 FCR 94 at 100-103.
Like the AAT, the RRT is an administrative body. Decisions of the RRT are not adjudications in the strict sense of the word. Decisions of the RRT are merely a "step in administration". The RRT must "review" RRT-reviewable decisions: sub-s 414 (1). It is empowered to exercise all powers and discretions conferred on the original decision maker: sub-s 415 (1). It may affirm or vary the original decision, remit the matter to the original decision maker for reconsideration, or set aside the original decision and substitute a new decision: sub-s 415 (2). If the RRT varies the original decision or sets it aside and substitutes a new decision, "the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister": sub-s 415 (3). The RRT is required to pursue the objective of providing an economical and informal review mechanism: sub-s 420 (1). It is not bound by technicalities, legal forms, or the rules of evidence and must act according to substantial justice and the merits of the case: sub-s 420 (2). Subject to two matters yet to be mentioned, I would treat the RRT as being on all fours with the AAT in the present respect, and would therefore, like O'Loughlin J in Comcare Australia v Murphy, supra, treat the Full Court decisions mentioned as binding me to treat the doctrine of issue estoppel as inapplicable.
The first matter to which I referred is that there is no equivalent of s 416 in the AAT Act. Does this provide a basis for distinguishing the cases decided in relation to the AAT? In my opinion, it does not, but affords an additional reason to think that the doctrine does not apply to the RRT, namely, that the section is intended to state exhaustively the circumstances in which the RRT need not conduct a hearing de novo and may take to be correct an earlier decision which it has made.
The second matter is that there is a clear public interest involved in the decisions of the RRT of a kind that does not characterise the decisions, or many of the decisions, of the AAT. This provides a further reason for thinking that the doctrine does not apply to the RRT, and that the legislature intended that the RRT should not be bound but should have a discretion, not to reconsider information considered in an earlier application and to take to be correct any decision made about or because of that information.
1.3.2 Repatriation Commission v Nation (1995) 57 FCR 25 (FC)
Mr Sun submits that Repatriation Commission v Nation (1995) 57 FCR 25 (FC) ("Nation") is applicable, either directly or by close analogy. In Nation, a veteran claimed to have developed a personality disorder as a result of undergoing surgery for war-caused sinusitis. The AAT accepted that the sinusitis was war-caused, but found that there was no causal link between the surgery and the personality disorder. The veteran applied to this Court for review of that decision. The only issue before the Court was that of the causal link between the surgery and the disorder. The Court remitted the matter to the AAT for reconsideration. The AAT concluded that the veteran's sinusitis was not war-caused.
The veteran applied to the Court for review of this second AAT decision. Northrop J held that the AAT was not entitled to re-consider whether the sinusitis was war-caused:
"The order remitted 'the matter' to the tribunal. The word 'matter' means all things in dispute between the parties. In the Federal Court, the things in dispute were limited to the issue of causation from the nasal operation to the existing disease of obsessive compulsory neurosis. That was the matter remitted to the tribunal to be heard and determined. Nothing else was remitted." (Nation v Repatriation Commission (No 2) (1995) 37 ALD 63 at 68-69)
An appeal by the Repatriation Commission to a Full Court was unsuccessful. The Full Court held that it was not clear from the terms of the order of remitter whether the entire dispute or only a more limited question had been remitted, and that it was necessary to have regard to the surrounding circumstances, including the Reasons for Judgment, in interpreting the order. The Full Court held that it was clear from those Reasons that the intention had been to remit only the limited question of causation. It followed that the AAT had exceeded its jurisdiction in re-considering whether the sinusitis was war-caused ((1995) 57 FCR 25 at 34).
A similar situation had arisen in Repatriation Commission v O'Brien (1985) 155 CLR 422 ("O'Brien"). In that case, the Repatriation Board had accepted that the veteran suffered from an anxiety neurosis which was caused by war service. He subsequently applied for benefits for his essential hypertension, claiming that it was related to his war-caused anxiety neurosis. His claim was rejected by the Repatriation Review Tribunal. This rejection was confirmed by the AAT, on the basis that neither the anxiety neurosis nor the essential hypertension was war-caused. The High Court held that the AAT
had no jurisdiction to review the earlier finding that the anxiety neurosis was war-caused, because the reference to the AAT was confined to the question whether the veteran was entitled to benefits in respect of the essential hypertension at 429 per Gibbs CJ, Wilson and Dawson JJ; see also 446 per Brennan J).
The terms of, and background to, Beaumont J's order of remitter made on 23 August 1995 were recounted in detail earlier. It will be recalled that his Honour ordered that:
"1. The decisions in paragraph 3 of the Second Further Amended Application for an Order of Review, being the decisions of the Tribunal given on 24 May 1995 [the Ransome Decision], be set aside;
2. The matter be remitted to the Tribunal for fresh hearing in accordance with the law." (emphasis supplied)
Beaumont J's Reasons for Judgment included the following:
"...a Court has already ordered that the matter be remitted to the Tribunal for fresh consideration. It [the RRT] will now do so in the knowledge that, for the reasons I have given, the Court is of the view that the first decision was arguably bad for the grounds stated.
...the whole matter will be returned to the Tribunal for fresh consideration." (at 57, emphasis supplied)
It will be recalled too, that his Honour cautioned against a too ready exercise of the discretion under s 416.
The present case is distinguishable from Nation and O'Brien because Beaumont J's order of remitter was not intended to limit, and did not limit, the issues to be addressed by the RRT. The order of Beaumont J remitted "the matter" to the RRT. The word "matter" may refer to the entire dispute between the parties or a limited point which is but part of that dispute: Nation at 34, per Beaumont J, with whom Black CJ and Jenkinson J agreed. In these circumstances, it is permissible to have regard to the circumstances surrounding the making of the order so as to interpret its meaning: Nation at 34. It is clear that his Honour's order remitted at least the entire matter that had been before the Ransome Tribunal to the RRT for reconsideration. I do not accept Mr Sun's submission that the "fresh hearing" referred to by Beaumont J was limited to a hearing of the question whether Mr Sun was a refugee by reason of the failure of the Chinese authorities to issue him a passport.
For these reasons, Nation and O'Brien were not authorities against a reconsideration by the Smidt Tribunal of all the evidence, or against its making of findings adverse to Mr Sun in relation to the issue of his pro-democracy activities in Beijing and Foshan.
1.4 Mr Sun's legitimate expectations; unnecessary delay and expense
Mr Sun complains that the conduct of a de novo review was unjust and unfair to him because it was contrary to his legitimate expectation that he would not be re-exposed to adverse findings on those matters on which he had already obtained favourable findings from the Fordham Tribunal.
Mr Sun submits that those legitimate expectations arose because the Minister had not sought to challenge such findings before Beaumont J and because the Fordham decision "subsists". The Minister submits that Mr Sun's submission is flawed because review of findings of fact is not available in judicial review proceedings, except on "no evidence" grounds (the Minister refers to Bond at 355-360). Mr Sun submits in reply that the Minister could have challenged the findings on the basis that they were so unreasonable that no reasonable decision maker could have made them.
The Smidt Tribunal considered the material that had been before the Fordham Tribunal and supplementary material and made its own findings accordingly. (It is noteworthy that a ground on which Mr Sun relied in his application for review of the Ransome Decision was that the Ransome Tribunal had failed to consider afresh for itself the evidence which Mr Sun had led before the Fordham Tribunal.) Some findings of the Smidt Tribunal were inconsistent with some findings of the Fordham Tribunal. But in view of the conclusions which I have reached in sections 1.1, 1.2 and 1.3 above, I do not think that Mr Sun had a legitimate expectation that the Smidt Tribunal would not re-enter upon any factual issues on which the Fordham Tribunal had made findings in his favour.
Similarly, and for the same reasons, whatever additional time and cost may have resulted from its having done so (it is not clear that was any) was not a disappointment of any legitimate expectation which Mr Sun had.
1.5 Mr Sun's mental condition
Mr Sun submits that the Smidt Tribunal acted unfairly and unjustly in making findings of fact against him without having had the benefit of observing his demeanour.
The Smidt Tribunal proceeded on the basis that Mr Sun's mental condition was fragile and that he was reluctant to attend another hearing in that condition. It appears from the correspondence between the Smidt Tribunal and Mr Sun's representatives that Mr Sun was invited, not required, to attend a hearing, and that the Smidt Tribunal took all possible steps to allow Mr Sun to present his case effectively without giving oral evidence.
The RRT wrote to Mr Sun's solicitor, Peter Jackson, of Walsh James ("Mr Jackson"), on 11 October 1995, advising that the Smidt Tribunal would "be conducting a full de novo review of Mr Sun's case." At that stage, the Smidt Tribunal had not determined whether to hold an oral hearing.
On 29 October 1995, Ms Le wrote to the RRT advising that Mr Sun elected not to appear. The letter contained the following:
"MR SUN ELECTS NOT TO APPEAR FURTHER BEFORE THE TRIBUNAL:
Having regard to the legal submissions prepared at my request on my behalf and sent to the Tribunal by the solicitors who appeared for Mr Sun in the Federal Court, I am surprised that the Tribunal has apparently decided that the matter cannot be resolved favourably on the papers and has decided that there will be a full de novo hearing in this matter. Perhaps I have misunderstood the Tribunal's intention in this regard?
The Tribunal has been provided with a report by Dr Bruce Stephens [sic - Stevens] to the effect that Mr Sun is suffering from extreme depression and acute Post Traumatic stress disorder. Neither the Minister nor the Tribunal has sought to dispute that assessment.
I have visited and spoken to Mr Sun on a number of occasions since that report was prepared. I am concerned that Mr Sun's condition continues to deteriorate and note that he is now on medication.
After speaking to Mr Sun and accepting his perspective as valid in the light of further medical advice I have formed the view that it is not in my client's interests to persuade him to appear at a hearing and yet again recount in detail his experiences in China. Mr Sun has asked me to notify the Tribunal, as he so requested we notify the Immigration Review Tribunal in relation to his application for a Bridging visa, that he does not wish to appear again to give evidence.
In so notifying the Tribunal, I wish to also note that Mr Sun has already been subjected to lengthy interviews by the Departmental officers and delegate and by the Tribunal, particularly by the Tribunal as constituted by Mr Fordham.
The tapes of those interviews are held by the Tribunal and a transcript of the hearing before Mr Fordham is also available.
Mr Sun is content that the Tribunal, in re-considering his application, proceed on the basis of the evidence given by him before the Tribunal in May, 1994 and also in the written submissions made by him and on his behalf throughout the consideration of his case before the Department, the Tribunal, the Minister and the Federal Court." (emphasis supplied)
The letter concluded by requesting that Ms Le be notified of any matters which the Smidt Tribunal considered adverse to Mr Sun's application so that his advisers could comment on them and on any documents identified by the Tribunal as relevant to his case so that they might be considered. The letter also recorded Ms Le's desire to have the opportunity of calling witnesses if the Smidt Tribunal should decide that a favourable determination on the papers was not possible and that a hearing was to be held.
The RRT replied on 3 November, confirming that a "full de novo merits review" would be conducted. The letter said:
"The Presiding Member notes that Mr Sun does not currently wish to attend another hearing of the Tribunal. Nonetheless, if, after considering all the documentary evidence before her she is unable to make a favourable decision in Mr Sun's case, Mr Sun will be invited to attend a hearing, at which time he may decide whether he wishes to attend."
The Smidt Tribunal felt that it was unable to reach a decision favourable to Mr Sun on the papers. Apparently, on or about 22 November, the Member decided to conduct an oral hearing on 4 December and Ms Le was made aware of this. In a letter to the RRT dated 29 November, Ms Le requested that the RRT identify those aspects of the case which were causing the Member difficulty in arriving at a decision and any adverse material before her, so that these matters "could be addressed by further paperwork given the state of Mr Sun's health".
On 1 December, Ms Le called on the RRT and inquired if the hearing was to go ahead on 4 December. She was told that it was not, since the RRT had not "received confirmation from Mr Sun".
On 8 December, the RRT wrote to Ms Le, again inviting Mr Sun to attend an oral hearing, as the Member had "a number of concerns regarding the credibility of claims Mr Sun made to the Department and the Tribunal, as previously constituted which she [believed could] best be addressed at an oral hearing of the Tribunal". The letter set out those concerns and then stated:
"The Presiding Member is mindful of Mr Sun's state of mind and would be happy to consider any advice that you or those attending to his welfare at Villawood can offer on ways to ensure his attendance at a hearing does not increase his stress."
Upon receipt of this letter, Ms Le apparently advised Mr Sun that he must attend a hearing. A hearing was scheduled for 18 December. In a handwritten letter dated 17 December, Mr Sun advised the Member with reference to the proposed hearing that he did not "want to talk about the past to this Tribunal again" and that he was "not going to say anything more to this Tribunal." As noted earlier, Mr Sun did in fact attend the hearing on 18 December, but answered virtually none of the questions put to him by the Member.
Of course, a tribunal may be at a disadvantage in making findings of fact if it has not had the opportunity to observe the demeanour of witnesses whose evidence is relevant to the findings. The Smidt Tribunal gave Mr Sun ample opportunity to appear before it to give evidence. It offered to put in place any measures that might be suggested to reduce the stress involved in his giving such oral evidence. However, Mr Sun had unequivocally declined these overtures. The Smidt Tribunal attempted to overcome the problem by allowing his advisers to submit written material to address various issues as they arose. In these circumstances, the contention that the Smidt Tribunal failed to act fairly and justly in the present respect is rejected.
1.6 Unfairness and unjustness
Aspects of this complaint are dealt with in other sections of these Reasons, particularly in respect of Ground 4 (Actual Bias). It is not shown that the Member adopted "the role of an adversary rather than the role of an independent and fair inquisitor." It is not shown that she acted unfairly or unjustly in any respect.
1.7 Generally
Mr Sun submitted that:
"... the decision of the Smidt Tribunal to conduct a full hearing de novo of the matters considered under the First Application and reenter upon those favourable findings of fact by Mr Fordham on substantially the same evidence relied upon by Mr Fordham was contrary to s 420. This contravention establishes each of the grounds in s 476 (1) (a) and (e)." (written submissions, para 4 - emphasis
supplied)
"... the Smidt Tribunal incorrectly interpreted and or [sic] incorrectly applied the law governing the power and or [sic] discretion to redetermine facts already found by a differently constituted Tribunal in circumstances where those earlier findings have not been impugned." (written submissions, para 116)
The amended application for an order of review does not particularise this matter as a ground of the application under para 476 (1) (e). It is therefore strictly not necessary to determine the question. However, I will do so.
Section 420 did not require the Smidt Tribunal to accept the Fordham Tribunal's findings of fact favourable to Mr Sun. Generally, my reasons for this view are those which I gave earlier in sections 1.2 to 1.6. It follows that the Smidt Tribunal did not incorrectly interpret the law applicable to the question of its re-entry upon the subject matter of the Fordham Tribunal's findings favourable to Mr Sun.
The reference in para 476 (1) (e) to "the facts as found by the person who made the decision" is a reference, in the context of the circumstances of the present case, to the facts as found by the Member not the facts as found by Mr Fordham. It follows that para 116 of Mr Sun's written submissions quoted above, reveals a misconception in this respect.
Ground 2."that the decision was an improper exercise of the power conferred by [the] Act ...": para 476 (1) (d) of the Act (para 4 of amended application for an
order of review)
Sub-section 476 (3) provides that the reference in para 476 (1) (d) to "an improper exercise of [a] power" is to be construed as being a reference to, relevantly, "an exercise of a power for a purpose other than a purpose for which the power is conferred". Mr Sun gives as particulars of the improper exercise of power, the particulars, noted above, that he gives in relation to Ground 1.
Those particulars are not particulars of an exercise of a power for a purpose other than a purpose for which the power is conferred. In any event, the Smidt Tribunal exercised the power conferred on it for the purpose of exercising the RRT's powers of review pursuant to Division 3 of PART 7 of the Act, and not for a purpose other than a purpose for which the power was conferred. As well, as noted earlier, the Smidt Tribunal's conduct satisfied the relevant epithets in sub-s 420 (1) and para 420 (2) (b).
Ground 3."that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision": para 476 (1) (e) of the Act (para 5 of amended application for an order of review).
3.1 Did the Smidt Tribunal incorrectly apply the law to the
facts as found by it?
The terms of para 476 (1) (e) of the Act and the respects in which Mr Sun contends that the Smidt Tribunal incorrectly applied the law to the facts as found by it (sub-paras (a) to (g) of para 5.1 of the amended application) were noted earlier.
The passages of the Smidt Tribunal's Reasons for Decision referred to in sub-paras (a) to (g) of para 5.1 of the amended application are among those quoted below in 4.2.2 under the heading "The Smidt Tribunal's findings of fact". Mr Sun acknowledges that the Reasons for Decision must be given a beneficial reading, but submits that the Smidt Tribunal's overall approach to his evidence demonstrates that it erred in applying the law in relation to the process of determining the factual issues particularised.
In my opinion, the matters referred to in sub-paras (a) to (g) of para 5.1 of the amended application are not particulars of an "incorrect application of the law to the facts as found", but it is nonetheless appropriate to deal with them.
3.2 Are the principles in Guo "the law applicable to the finding of facts..."?
Mr Sun submits that principles enunciated by a Full Court of this Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 ("Guo") are "the law applicable to the finding of facts ... for the purposes of determining an application for refugee status". With respect, this misconceives the effect of that case. Guo was concerned with the principles of law governing determination of the question whether there exists a real chance of persecution for a Convention reason, not with the process by which findings of fact are made. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 387 ("Chan"), the meaning of "well founded" in relation to a fear of persecution was explained by the High Court:
"... a fear of persecution is `well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. ... I prefer the expression `a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring." (per Mason CJ at 389)
" ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as `well-founded' for the purpose of the Convention and Protocol." (at 429 per McHugh J)
In Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 ("Wu") the High Court held that the description, in a statement of reasons by a delegate of the Minister, of a suggestion that an applicant for refugee status would be treated harshly as “speculative”, did not indicate that the Chan test had miscarried. Brennan CJ, Toohey, McHugh and Gummow JJ said:
"The word `speculative’ in the context in which it appears did not need not amount to a denial of the delegates’ function of assessment of future chances of persecution. Rather, the word might equally have been used to refer to the probative force of the material before the delegate. ...
There is nothing here to suggest that the delegates abandoned the process of looking to the future which is the essence of the Chan test." (at 277-278, underlining supplied)
"When conflicting information available to the Minister’s delegate relates to some past event ... the attribution of greater weight to one piece of information as against another or an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test." (at 281)
Similarly, in Thanh Phat Ma, supra, Drummond J said:
"I do not, in any event, understand anything in Chan or Wu to lend any support to the proposition that, in refugee cases, the decision-maker must not form a view, on the basis of the material before him, on the various factual issues which are relevant to enabling the decision-maker to determine the objective element in the test of whether a person is a refugee is established. I do not think that Kirby J... in Wu... suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him, which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution. ... All I think Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded the factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect." (at 159-160).
Mr Sun's submission did not make clear how anything said in Guo controlled the RRT's process of fact-finding. Paragraph 476 (1) (e) assumes that findings of facts have been made and is, relevantly, concerned with the application of the law to facts as found.
3.3 Is the Smidt Tribunal's fact finding process reviewable?
The process by which the Smidt Tribunal determined the facts in Mr Sun's case involved the weighing up and consideration of the material before it. In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 (FC) Jordan CJ (with whom Davidson and Stephen JJ agreed) said:
"The question whether there is any evidence of a particular fact is ... a question of law: Sittingbourne Urban District Council v Lipton Ltd ([1931] 1 KB 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 KB 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law ... If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision ... is conclusive. ... There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it." (at 9)
In the passage in which immediately preceded that set out above, the Chief Justice said:
"Where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. The law was so stated by Lord Parker in Farmer v Cotton's Trustees ([1915] AC 922 at 932)." (also at 9)
The Chief Justice was addressing findings made by a trial Judge bound by the rules of evidence.
The first passage quoted above was referred to with approval by North J in Zakinov v Gibson, unreported, 26 July 1996, in support of the proposition that "failure to give greater weight to some evidence rather than other evidence is not an error of law" (at 16). Zakinov v Gibson was an application to this Court for review of a decision of the RRT.
The Minister submits that decisions of this Court under the ADJR Act which have held that error of law may be discerned from the fact-finding process are not applicable to applications for review under s 476 of the Act. In reply, Mr Sun submits that:
"To the extent that findings of fact ('primary findings') form the basis of other findings of fact ('secondary findings'), an error of law on the 'facts as found' within the meaning of s 476(1)(e) can be demonstrated..." (written submissions in reply, para 71)
In my view, the expression "the facts as found" in para 476 (1) (e) refers to both "primary facts" and "secondary facts" inferred from them, since the paragraph makes clear that it refers to all facts to which the law is to be applied.
Mr Sun refers to Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 ("Avon Downs"), Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 ("McCabe") and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 ("Curragh Queensland Mining") in support of this submission.
In Avon Downs the Commissioner of Taxation had disallowed an objection to an assessment without giving reasons or indicating the view of the facts which he took. The decision turned on the question of the state of the voting power in the taxpayer company. Dixon J said:
"But it is for the Commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations,
then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." (at 360)
This line of reasoning does not assist Mr Sun. Avon Downs is authority for the proposition that it is not necessarily a fatal objection to an application for review of an administrative decision, that it is impossible to formulate the basis of the application precisely because the decision-maker did not give reasons. It is not authority, however, for the proposition that a Court has a general power to review an administrative decision-maker's fact-finding process, or to infer that a decision-maker erred in applying the law to the facts as found because the decision appears to be unreasonable. In fact, Dixon J emphasised that it was for the Commissioner, not the court, to determine the facts. The present case is perhaps stronger in this respect than Avon Downs, because para 476 (1) (e) expressly takes as its starting point "the facts as found".
In McCabe, Davies J held that in making a certain finding of fact, the AAT may have misinterpreted the relevant law and posed the wrong question (at 437-438). His Honour acknowledged that appeals from the AAT were limited to questions of law, and that the making of a wrong finding of fact was not an error of law (at 438, citing Brennan J in Waterford v Commonwealth (1987) 163 CLR 54 at 77). However,
he held that in applying "grounds of review such as unreasonableness", the course of reasoning leading to the operative decision, as well as that decision itself, may be considered, and that if the reasoning process led to a finding of fact which was unreasonable, particularly one which seemed arbitrary, the decision could be set aside (at 438-439 and authorities there cited).
The Minister submits that McCabe does not govern to the present case. I agree. Paragraph 476 (1) (e) of the Act limits the ground of review for error, to, relevantly, an error "involving ... an incorrect application of the law to the facts as found." The point of departure is "the facts as found". This limitation was not a factor in McCabe.
Curragh Queensland Mining relates to the correct approach to an application for review of a decision on the ground that there was no evidence or other material to justify the making of the decision. It is not relevant to the question whether the RRT's course of fact-finding may be challenged under para 476 (1) (e) of the Act.
In Zakinov v Gibson, supra, the applicant sought review pursuant to para 476 (1) (e), claiming that the RRT had erred by giving inadequate weight to the evidence of an expert witness. The applicant submitted that the evidence of an expert must always be accepted by the RRT. North J dismissed the application, on rejecting the submission (at 15). It was therefore unnecessary for his Honour to consider whether it was open to the Court to review the weight given by the RRT to particular evidence.
In my view, the notion of an "error of law involving ... an incorrect application of the law to the facts as found" in para 476 (1) (e) does not permit review for error in the process by which the RRT made findings of fact, whether "primary findings" or "secondary findings". This conclusion is consistent with the legislative scheme of Part 8 of the Act, which does not permit judicial review on the merits.
For these reasons, para 5.1 of Mr Sun's amended application for review in support of Ground 3 is not made out.
3.4 Did the Smidt Tribunal incorrectly apply the law in relation to the "real chance" test?
Mr Sun accepts that the Smidt Tribunal enunciated the "real chance" test correctly, but submits that it applied it incorrectly. Mr Sun identifies several passages in the Reasons for Decision which, he says, "raised a real chance of persecution in this case", and findings which, he says, demonstrate that the Smidt Tribunal applied the test incorrectly.
The Minister submits, however, that in light of its findings, it was open to the Smidt Tribunal to conclude that Mr Sun did not face a real chance of persecution. The Minister says that
none of the passages identified by Mr Sun points to a failure to apply the correct test to the facts as found. Once it is accepted that there can be no challenge to the Smidt Tribunal's finding that Mr Sun was not involved in pro-democracy activities in China, there can be no possibility of any error in applying the "real chance" test. The Smidt Tribunal went on, however, to consider the "real chance" test on the assumption, contrary to its finding, that the applicant's claims were credible (it will be recalled that the Fordham Tribunal had decided against Mr Sun on the basis that his fear of persecution was not well founded). The Minister submits that even if the Smidt Tribunal misapplied the "real chance" test, that error does not vitiate its decision.
Mr Sun submits that even if the Smidt Tribunal's fact-finding process is not open to review, the Tribunal erred in determining that there was no real chance of persecution, even on the basis of its own findings of fact:
"... where a rejection of a fear of persecution is based on findings of historical fact, an error in the proper application of the 'real chance' test will be established if it clear [sic] from the reasons for decision that the Tribunal has not in the relevant sense engaged in the exercise of considering 'What if I am wrong'..." (written submissions, para 107)
The "What if I am wrong?" formulation is derived from the Reasons for Judgment of Einfeld J in Guo. His Honour said:
"The 'real chance in the future' test will be compromised if it is heavily influenced by findings about the past made on the balance of probabilities. In other words, the substance of the real chance test will be circumvented if the deciding factor is a finding on the balance of probabilities in relation to a past event and there was no analysis of the possibility that it was inaccurate. It is simply not correct to define this conundrum in terms that, if something happened in the past there is a real chance that it will happen again, and if it did not there is no real chance that it will happen in the future." (at 441)
In Wu, Kirby J, citing this passage, said that it was "necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question "What if I am wrong?" (at 293).
Einfeld J referred to, and approved of, an illustration of the correct approach which had been given by Sheppard J in Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 55 FCR 375 at 407, namely, the approach to the assessment of damages on the basis of future possibilities in personal injury cases. Einfeld J said:
"This approach could be appropriate for the circumstances of a case such as the one at hand. The tribunal could assess past events on a balance of probabilities test to make its findings, and then engage in the speculation of 'what if I am wrong'. Proceeding on the basis that it was probable that events had transpired as it had found and were not Convention related, but that it was nonetheless possible that they were Convention related, the question of any real chance of persecution on Convention grounds on the appellants' return to China could be addressed." (at 441, underlining supplied)
His Honour continued:
"Both the decision-maker and the tribunal are under a positive duty to assess future potentialities, engage in speculation, and refrain from weighing and comparing scenarios." (also at 441)
The Minister submits that Mr Sun's submission takes the "What if I am wrong?" test out of context, and that the test may be applied only in determining whether a real chance of persecution exists on the basis of the facts as found. I accept this submission. It is appropriate for the RRT to consider a range of possibilities when assessing whether there is a real chance of persecution of the applicant in the event of his return, but not when determining issues of past fact, such as whether the applicant did or did not participate in a certain event. The "What if I am wrong?" query, takes as its starting point findings of past fact which are not to be entered upon again. I think it is clear from the underlined passage from Einfeld J's judgment quoted above that this is what his Honour had in mind.
Mr Sun also submits that the Smidt Tribunal erred in rejecting speculation as "idle" in the context of the "real chance" test. He points to the Smidt Tribunal's response to various suggestions made by Ms Le as to why Mr Sun may have been targeted by the Chinese authorities.
"These suggestions are idle speculation unsupported by any evidence and do not alter my conclusions." (at 61.5)
The Minister submits that the Smidt Tribunal was not required to speculate about all possibilities raised by Mr Sun's advisers which were not suggested by him and were not the subject of any evidence, and that, in any event, in the light of its findings of fact, its refusal to speculate about these suggestions did not affect its decision. I accept this submission.
3.5 Did the Smidt Tribunal incorrectly interpret or apply the law in relation to disqualification for reasonable apprehension of bias?
According to para 5.3 of the amended application, "the Tribunal incorrectly interpreted the applicable law in relation to disqualification for reasonable apprehension of bias as set out in the Decision at 22.8." "The issue of bias" is addressed in six paragraphs at pp 22-23 of the Reasons for Decision. The Member said:
"I understand bias to refer to situations in which it might reasonably be suspected by a fair-minded person that a decision maker has not or would not approach the issue to be decided with an open mind." (at 22.8)
Mr Sun seizes on the words "has not [approached] or would not approach" and submits that a correct statement of the test would have used the words "might not approach" instead. Related to para 5.3 of the amended application is para 5.4, in which Mr Sun claims that in rejecting the request made orally on 18 December 1995 and renewed by letters dated 14 January 1996 and 9 February 1996 that the Member disqualify herself, she "incorrectly applied the law to the facts."
Paragraph 115 of Mr Sun's submissions is as follows:
"When considering Ms Le's applications for disqualification, the Tribunal incorrectly interpreted the applicable law. This provides a ground of review within the meaning of s.476(1)(e). If the Tribunal had made no reference to the test for bias, but rather had merely rejected the application, then there could be no review - reasonable apprehension of bias not being a ground of review (cf s.476(1)(f)). However, having chosen to state the test and having done so incorrectly, the ground in s.476(1)(e) applies."
Mr Sun also submits that the Member "mischaracterised the bias application as one of actual bias when in fact the application was one of apprehended bias".
With respect, having regard to the limited grounds of review available, the submission is without merit. It is put that the submission made to the Member was of the form, "I do not suggest that you are actually biased against me, but I ask you to disqualify yourself because a reasonable member of the public might think that you might be". But a refusal to disqualify, even though there was in fact a reasonable apprehension of bias so defined, would have been, as Mr Sun's submission accepts, inconsequential, since reasonable apprehension of bias is not a ground of review. Correctly, Mr Sun relies on actual bias not reasonable apprehension of bias, as a ground of review in the present application (see Ground 4 later).
At the hearing before the Smidt Tribunal on 18 December 1995, Ms Le said:
"... I've been asked by his [Mr Sun's] solicitor to make a point about the test for bias and this is not to say that anyone believes the Tribunal is biased, but they pointed out that there is a test for bias and that is whether a reasonable member of the public could come to the view that a decision maker may not - may not bring an unprejudiced mind to the resolution of the issues." (at 19, emphasis supplied)
Ms Le then said that the delay by the Smidt Tribunal in dealing with the matter, the issue of a subpoena for production of Mr Sun's photographs, and the failure to return the photographs to Mr Sun, were factors which gave rise to a reasonable apprehension of bias. The Member defended her conduct in relation to each of these matters and denied bias.
The following exchange occurred:
"MS LEE
[sic] You see, one of the big problems here is that when we have an issue where in his case a letter came which suggested that even the street names that he had mentioned didn't exist ... and then he holds up his hands in horror and says well, they do and he just, you know, writes down the word in Chinese ...
SMIDT: Mm.
MS LEE
[sic] ... and the translation there is Cantonese, it's very easy to pick up any map as I did there and ...
SMIDT This - this is a fairly minor point within the other ...
MS LEE:
[sic] But it's not minor to him because ...
SMIDT: That may well be, Ms Lee, but my job - I cannot - I'm afraid I cannot guarantee your client against any stress or any difficulty in this process. I do my best to ensure that he receives a fair and full hearing before this Tribunal. That involves putting to him the things that cause me doubt. Now, in this case you say that you have been - and certainly when I read the information that you've provided it may well be that there's no question about the street names that they're there, that it's not an issue. However, I would be derelict in my duty as a member of this Tribunal if I didn't point out to Mr Sun the things that are causing me concern. I put them in the letter because Mr Sun was unwilling to come to a hearing and this was the only manner in which I could put these things to him. I didn't put them there to upset him, to distress him, or in any way to deal with him unfairly. I put them there so he would have an opportunity to respond.
MS LEE:
[sic] Yes and I've responded as best I can.
SMIDT: Which is fine but if we're - as I understand we are - if we're currently addressing the issue of bias, I don't see how including these issues in a letter to your client is in any way indicative of bias." (at 22-23)
At the hearing, Ms Le purported to disavow a charge of actual bias but her position in this respect changed subsequently. In a letter to the RRT dated 14 January 1996, that is to say, after the hearing on 18 December 1995 and prior to the giving of the Smidt Decision on 1 April 1996, Ms Le submitted, inter alia, as follows:
"11. I have considerable experience in the refugee appeal process in this country. I must say that I have never encountered a member of the Tribunal who has been so assiduous and indefatigable in his or her efforts to uncover material adverse to an applicant and yet so apparently oblivious to material or matters in the evidence which support the Applicant."
"14. During the hearing in the present review I began to outline grounds in support of an application that the Presiding Member disqualify herself on the grounds of reasonable apprehension of bias on the basis of the established test and taking care to note that no allegation of actual bias was being made. The tape of that hearing will reveal that the Presiding Member repeatedly interrupted my submission in an aggressive and argumentative fashion. I was taken aback by the Presiding Member's response and did not finish outlining the grounds of that application. Mr Sun, in his chronically depressed state, has believed for some time that Tribunal is actually biased against him. Having regard to the sorry history of this matter I have now come reluctantly to the view that his belief is justified. ..."
In her final submission on behalf of Mr Sun, Ms Le simply stated:
"I do not propose to repeat my submissions in relation to bias. I contend that the Presiding Member should disqualify herself. I trust that the Tribunal understand that on a conservative view I am obliged to take the objection if I wish to rely upon it in the event of an adverse finding." (para 2)
By the time the Member came to give her decision, she was faced with an allegation of actual bias. But I proceed on the basis that Ms Le's application remained one for disqualification for reasonable apprehension of bias.
In Livesey v New South Wales Bar Association (1983) 151 CLR 288 ("Livesey"), the High Court said:
"[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it ...." (at 293-294 - underlining supplied)
In place of this "two `mights' formula", the word "would" was used in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 (Mason CJ, Brennan J), at 99-100 (Gaudron, McHugh JJ), In Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 55 FCR 375 (FC), a Full Court of this Court, held that their Honours had not intended a test different from that laid down earlier in Livesey.
Similarly, although the Member did not use "the two `mights' formula", in my opinion she applied a test no different from one so framed, as the two paragraphs which follow that quoted earlier from her Reasons for Decision make clear:
"I believe I approached Mr Sun's case with an open mind. I believe the conduct which Ms Le and Mr Sun see as indicating bias to be normal and acceptable procedures for conducting a merits review of an application for a protection visa under the Act. It is the job of the Tribunal to adequately investigate the claims made by an applicant and to put any adverse material to him so that he may respond prior to arriving at a final decision.
I have not, as Ms Le alleges, sought only evidence adverse to Mr Sun's claims and ignored material which supports them. I have investigated Mr Sun's case as fully as possible and informed myself as fully a possible to the situation in China during
the period in which he claims to have been politically active and currently. I did this to ensure that I was adequately informed when deciding his case and to ensure that I had not, as Ms Le feared, overlooked or ignored any evidence which might support his claims. When evidence obtained during this process appeared to be at odds with the claims made by Mr Sun, I advised him of this so that he might respond. While this process may have been upsetting to Mr Sun, I do not believe it indicates bias." (underlining supplied)
If the Member had used the word "might" instead of "has not or would", those two paragraphs would inevitably have led to her declining to disqualify herself. I would not grant relief on the ground that the Member made the inconsequential slip of using the word "would".
I next consider whether the Smidt Tribunal was actually biased against Mr Sun.
Ground 4. "that the decision was induced or affected by fraud or by actual bias": para 476 (1) (f) of the Act (para 6 of amended application for an order of review).
4.1 Actual bias - the law
The general law principles underlying the test for disqualification of a decision-maker on the ground of bias is that justice must not only be done, but must be seen to be done: The King v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 ("Watson") at 262-263 per Barwick CJ, Gibbs, Stephen and Mason JJ; Re JRL; Ex parte CRL (1986) 161 CLR 342 ("Re JRL")
at 351 per Mason J. The courts have generally refused to enter into enquiry as to whether a decision maker was actually biased, reasonable apprehension of bias being sufficient to require disqualification: Watson at 258 per Barwick CJ, Gibbs, Stephen and Mason JJ; Re JRL at 356-357 per Mason J; Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J; Singh v Minister for Immigration and Ethnic Affairs, unreported, FCA/Lockhart J, 18 October 1996 ("Singh").
But as a result of ss 476 and 485 of the Act, a reasonable apprehension of bias on the part of the RRT is not, in itself, a ground on which the Court can review its decisions (in Singh, Lockhart J left open the question whether reasonable apprehension of bias might be available as a ground of review in aid of a ground specified in sub-s 476 (1)). Mr Sun must go so far as to establish actual bias. Sub-paragraph 413 (f) of the Explanatory Memorandum to the Migration Reform Bill 1992, included the following:
"The essential requirement under this ground of review will be to show that the decision itself was ... affected by ... actual bias. Where there is an allegation of bias directed against the decision-maker or other person involved in the decision-making process, it will be necessary to show that the decision-maker or that other person was actually biased and not that there was simply a reasonable apprehension of bias;"
Einfeld J considered the meaning of para 476 (1) (f) in Murillo-Nunez v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 150 ("Murillo-Nunez"). Having referred to this passage from the Explanatory Memorandum, his Honour said:
"It was put in argument that if there is a perception of bias to the requisite standard, bias is established and it is unnecessary to go to the point of proving that a judge or tribunal was actually biased. I think that this is what the legislature had in mind. ... the legislature is likely to have meant that what needs to be established in this context is that the actions of the tribunal under consideration were so tainted by provable events that a conclusion should be drawn that the decision was affected by bias." (at 153-154)
With respect, the meaning of this passage is not entirely clear. If it accepts that what must be proved is actual bias and is addressing the evidentiary question of the material on which it will be proper to infer actual bias, the passage may be unobjectionable. But if it is meant to suggest that something less than actual bias can satisfy para 476 (1) (f), I respectfully disagree.
In Wannakuwattewa v Minister for Immigration and Ethnic Affairs, unreported, FCA/North J, 24 June 1996 ("Wannakuwattewa") the applicant applied for review under para 476 (1) (f). North J said:
"The applicant contended that the decision of the Tribunal in this case was affected by actual bias. This involves demonstrating that the Tribunal did not, in fact, bring an unbiased mind to the issues before it. It means that the applicant must show that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case." (at 4)
and
"... actual bias involves the state of mind which prevents any persuasion to a view different to the one then held by the decision maker." (at 9)
In holding that bias had not been established, his Honour considered (at 11) that the language used by the RRT in passages of the transcript relied on by the applicant was not the language of final determination and merely expressed a tentative view to which the applicant was invited to respond.
In Singh, Lockhart J approved of North J's approach. His Honour provided (at 9-10) further guidance in relation to para 476 (1) (f). First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to call for disqualification his Honour referred to Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, per Gaudron and McHugh JJ). It is permissible for decision-makers to make known their preliminary views for the purpose of ventilating issues. Even where preliminary views are strongly held, there will be actual bias only if they are incapable of being altered. Secondly, his Honour observed that any particular matter relied upon as showing actual bias must be considered in the context of the hearing as a whole: see Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ. Thirdly, his Honour remarked that it is not sufficient to show that a decision-maker has displayed irritation or impatience or has even expressed sarcasm, and that whether such matters show actual bias remains a question of fact. Lockhart J's judgment in Singh was referred to with approval by Branson J in Singh v Minister for Immigration and Ethnic Affairs, unreported, 5 March 1997, at 4-6.
The fact that a decision-maker disbelieves, or is critical of, a party or a witness does not, of itself, indicate bias: Ramadan v New South Wales Insurance Ministerial Corporation, unreported, New South Wales Court of Appeal, 7 April 1995 ("Ramadan") at 3 per Kirby P, at 11 per Rolfe AJA.
In Re JRL, Mason J described "bias" (at 352) as a disposition not to decide a case impartially and without prejudice, as distinct from a disposition to decide it adversely to one party. This formulation was referred to with approval by Brennan, Gaudron and McHugh JJ in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86. In Watson, Barwick CJ, Gibbs, Stephen and Mason JJ said:
"During the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling their correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory." (at 264; cited with approval by Gibbs ACJ in Re Shaw; Ex parte Shaw (1980) 32 ALR 47 at 50-51 and by Wilson J in Re JRL at 359-360)
It is convenient now to set out the whole of the Member's treatment in her Reasons for Decision, of the application that she disqualify herself on the ground of actual bias, notwithstanding that some parts of it have been quoted earlier:
"At the hearing Ms Le suggested that it could be argued that I was biased against her client. When asked to elaborate she suggested that the delay in finalising Mr Sun's case might be taken to indicate bias and also suggested I appeared unwilling to following the UNHCR Handbook recommendation that 'there should be a presumption that the applicant be given the benefit of the doubt if there is a doubt which arises'.
I explained to Ms Le that I had commenced the investigations which I believed necessary immediately after his case was constituted to me. I also pointed out that the UNHCR Handbook recommends that applicants be given the benefit of the doubt if their claims are accepted as generally coherent and credible. I noted that I had some concerns about her client's credibility and had explained these to him to allow him to respond. I assured her that I was aware of the UNHCR guidelines and would be prepared to give Mr Sun the benefit of the doubt in appropriate circumstances. I advised Ms Le that I did not consider the matters she had raised indicated that I was biased against her client.
... Ms Le suggested that I was 'assiduous and indefatigable' in my efforts to uncover material adverse to Mr Sun and yet apparently oblivious to material or matters in the evidence which support his claims.
I understand bias to refer to situations in which it might reasonably be suspected by a fair-minded person that a decision maker has not or would not approach the issue to be decided with an open mind.
I believe I approached Mr Sun's case with an open mind. I believe the conduct which Ms Le and Mr Sun see as indicating bias to be normal and acceptable procedures for conducting a merits review of an application for a protection visa under the Act. It is the job of the Tribunal to adequately investigate the claims made by an applicant and to put any adverse material to him so that he may respond prior to arriving at a final decision.
I have not, as Ms Le alleges, sought only evidence adverse to Mr Sun's claims and ignored material which supports them. I have investigated Mr Sun's case as fully as possible and informed myself as fully as possible to the situation in China during the period in which he claims to have been politically active and currently [sic]. I did this to ensure that I was adequately informed when deciding his case and to ensure that I had not, as Ms Le feared, overlooked or ignored any evidence which might support his claims. When evidence obtained during this process appeared to be at odds with the claims made by Mr Sun, I advised him of this so that he might respond. While this process may have been upsetting to Mr Sun, I do not believe it indicates bias." (at 22.3-23.4)
4.2 Reasons for Decision of the Smidt Tribunal
4.2.1 Introduction
The Smidt Tribunal's Reasons for Decision are expressed in 69 pages. They are divided into sections headed "Decision under review" (p 1), "Criteria for grant of a protection visa" (pp 2-5), "Mr Sun's claims and evidence" (pp 6-26), "Assessment of Mr Sun's claims and evidence" (pp 26-69) and "Decision" (p 69). As Mr Sun alleges actual bias, it is necessary to consider the Reasons for Decision in some detail.
It is appropriate to note two matters at the outset. First, the Member noted her doubts about some of Mr Sun's evidence:
"... I had difficulty accepting his claims regarding his participation in 1989 as some of the information he provided differed from accounts contained in published reports on the period."
"...Mr Sun's inability to provided [sic] a more detailed account of his own activities between 27 April 1989 and 3 June 1989 also raised doubts in my mind about his participation in the pro-democracy movement during this period." (at 13.2)
"...Mr Sun was advised that, even if his claims regarding his participation in the demonstrations in
1989 were accepted, I had difficulty accepting that the authorities would have continued to frequently visit his parents [sic] home inquiring about his whereabouts until his departure from China in early 1993..." (at 16.2)
"... Mr Sun was also advised that it was difficult to accept that he would have obtained a false passport in the false name he had used during his three years in Foshan if he was planning to flee China because it had been (or soon would be) discovered that the anti-government activities in which he had participated while using that false name had been discovered. ..." (at 16.8-.9)
Secondly, the Member considered the effect of Mr Sun's mental condition on his ability to present his case:
"... while I accept the expert advice of Dr Stevens regarding Mr Sun's psychological state in August 1995, I do not consider that these problems have significantly hampered Mr Sun's ability to present his claims and consider that he has been given ample opportunity to do so." (at 25.9)
4.2.2 The Smidt Tribunal's findings of fact
The Member noted the need to take into account, in making findings of fact, any problems faced by Mr Sun as a result of language difficulties, lack of familiarity with the RRT's procedures, and apprehension of authority as a result of his past experiences. She referred (at 26-27) to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status ("the Handbook"), which notes that applicants will often be unable to provide documentary evidence to support their claims, and that applicants who are unable to substantiate certain claims should, generally, be given the benefit of the doubt. The Member referred to Guo, in which Foster J said (at 458) that mere doubts as to an applicant's credibility did not exclude the possibility that his or her claims were true, and that the possibility could be excluded only by positive disbelief. The Member also noted that his Honour had said:
"Exaggeration or even fabrication of parts of a witness' testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony." (at 460)
The Member stressed, however, that this did not mean that every claim put forward must be accepted uncritically. It noted (at 27) the Handbook's advice that an applicant is entitled to the benefit of the doubt only when all available evidence has been checked and the Tribunal is satisfied as to the applicant's general credibility. The Member noted the importance, in this regard, of considering relevant independent evidence.
I set out below, using the headings in her Reasons for Decision, the Member's assessment of, and findings in respect of, the various claims made by Mr Sun.
"Mr Sun's identity" (28-30)
"I do not accept that Mr Sun never possessed a visa for Australia or that he destroyed his passport and boarding pass immediately before his departure from New Guinea because he intended to apply for refugee status and did not want to mislead Australian officials ..." (at 28.7)
"... I consider that there is no more than [a]
remote possibility that even the most compassionate booking agent would have allowed him to board the plane without a visa." (at 29.1)
"I do not believe that Mr Sun boarded his Air Nuigini flight in PNG without a visa for Australia." (at 29.2)
"I do not accept that, rather than complete the [departure] card in accordance with the information contained in his passport, Mr Sun would have provided an almost completely different set of information. ... I do not believe [migration officials checking departing passengers] would have failed to notice such significant differences as those contained in the documents [departure card and passport] provided to them by Mr Sun. I believe the details on Mr Sun's departure card are substantially the same as those on his passport." (at 29.5-.6)
"I find this explanation [that Mr Sun destroyed his passport because he did not want to deceive Australian authorities] far-fetched and implausible." (at 29.8)
"... I believe that the passport Mr Sun held when he boarded his flight from Port Moresby to Australia contained an Australian visa and contained different personal details ... from those which Mr Sun claims it contained. Mr Sun is clearly concealing information about his passport and I do not accept that he destroyed it because he did not want to deceive the Australian authorities." (at 29.9-30.1)
"I find the destruction of Mr Sun's passport and boarding pass immediately prior to his entry a clear indication that he wished to conceal information about his identity and/or the manner in which he left China." (at 30.4)
"I find Mr Sun's failure to even attempt to seek evidence from his friend [with whom he lived in Papua New Guinea] a further indication that he is concealing information about his identity and his time in PNG." (at 30.8)
"Mr Sun's participation in the 1989 pro-democracy movement" (30)
"...I do not accept that Mr Sun played a leading or an active part in the 1989 pro-democracy movement in Beijing." (at 30.10)
This "non-acceptance" of Mr sun's claim was based on the findings set out below.
"University entry mark" (31)
"I consider the inconsistency between the information given by Mr Sun regarding his entry mark and that provided by the Consulate a strong indication that he did not enter the People's University of China in Beijing in 1988." (at 31.10)
"The 19 April 1989 demonstration" (32-35)
"Mr Sun's account of the demonstration held at Zhongnanhai on 19 April 1989 differs significantly from other accounts before the Tribunal and I do not believe that he participated in this event." (at 32.1)
"I do not believe that anyone who had attended this event would have described it as a 'silent sit down protest', and I do not believe that Mr Sun took part in this demonstration." (at 35.2)
"... I do not accept this explanation for the discrepancy between his evidence and that contained in the eye witness accounts before the Tribunal." (p 35.5)
"The demonstration of 27 April 1989" (35-39)
"I do not believe that anyone who was present would
have described the event as a three hour march beginning and ending in Tiananmen Square. Such a description could only be made by someone who was not present.
I also note that Mr Sun told Mr Fordham that there was no military presence during the time of the march. From the accounts quoted above, it is clear that, for the first time, there was a military presence during this march.
In light of these problems, I don't believe that Mr Sun participated in this event." (at 39.3-.5)
"The period between 27 April and 3 June 1989" (39-40)
"I do not accept that someone who had played the role claimed by Sun in these events would have been unable to provide more than a very general account of the events, almost totally devoid of personal detail." (at 39.6)
"In light of this evidence, it seems to me extremely unlikely that someone who organised the participation of their classmates would have remained constantly in Tiananmen Square." (at 40.4)
"Conclusions about Mr Sun's involvement in the pro-democracy movement of 1989" (40-42)
"I find that Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement and that he organised and led his 30 classmates throughout the period to be lacking in credibility. From the evidence, it appears that he did not enter the People's University of China in 1988. More importantly his account of the major events in which he claims to have participated prior to 3 June 1989 is significantly at odds with the eye witness accounts before the Tribunal. The evidence he gave regarding his participation in the period from 27 April 1989 to 3 June 1989 was lacking in the kind of details generally remembered by participants in events of such significance and inconsistent with other accounts of the period. I do not believe that Mr Sun was an active participant in the 1989 pro-democracy movement in Beijing.
...
... I do not accept that an intelligent young man such as Mr Sun would have so few memories of his involvement in the momentous events which took place in Beijing between 27 April 1989 and 3 June 1989 or that mere confusion could account for the substantial difference between his account of the demonstration of 19 April 1989 and that given by other observers." (at 40.5-41.2)
"The authorities' continued pursuit of Mr Sun" (42)
"Even if I accept that Mr Sun was a class organiser in the pro-democracy demonstrations of 1989, I find the claim that he was forced to remain in hiding in Foshan because he was actively sought by the Chinese authorities who frequently visited his parents until his departure from China in April 1993 to be totally implausible." (at 42.3)
"The repression following June 1989" (42-44)
The Member gave (at 42.5-44.1) an account of the "crackdown" on various freedoms by the Chinese authorities after the pro-democracy demonstrations.
"Conclusions on Mr Sun's claims regarding the authorities' continued pursuit of him" (59-61)
"... the evidence before the Tribunal [does not] suggest that someone who participated in the 1989 pro-democracy movement in the manner claimed by Mr Sun would have [been] actively pursued by the police for nearly four years after the military crackdown which ended the pro-democracy demonstrations. Thus, even if I accept Mr Sun's claims regarding 1989 in their entirety, I would find the possibility that he was still of serious interest to the authorities in early 1993 to be remote. However, as noted above, I find that Mr Sun has greatly exaggerated, and possibly fabricated, his claims regarding his participation in 1989. In these circumstances, I do not accept that the Chinese authorities continued to seek him from 1989 until 1993 or that [they] visited his parents from 1989 to 1993 because of his participation in the 1989 pro-democracy movement in Beijing." (at 59.10-60.2)
"... even if I accepted that Mr Sun formed a pro-democracy group in Foshan, it is clear from his own evidence that authorities were not aware of this until at least immediately prior to his departure from China. It follows that these alleged activities cannot not [sic] have had any influence on the authorities' attitude towards him prior to early 1993." (at 60.3)
"... even if I accepted that Mr Sun had taken these photographs himself, I would find the likelihood that the Chinese authorities pursued him until at least early 1993 with the vigour he has claimed to be fanciful." (at 60.5)
"Time in hiding in Foshan" (61-62)
"... I do not accept that Mr Sun was an active participant in [the] pro-democracy movement in 1989 who would have been of continuing interest to the police. In these circumstances, I do not accept that he was forced to live in hiding under an assumed identity in Foshan for nearly four years.
Furthermore, I find Mr Sun's evidence regarding the pro-democracy group he claims to have formed unconvincing.
Mr Sun claims that he was motivated to form this group because of his active involvement in 1989. However, I do not accept that Mr Sun was actively involved in pro-democracy movement in 1989.
Mr Sun claims that membership of this group placed him at risk of persecution. ... none of the members of the group were not detained [sic- were detained] or experienced other problems. I do not believe that members of a pro-democracy group of serious interest to the authorities would have escaped with nothing more than a warning.
As noted above I have considerable difficulty accepting that someone fleeing China because of their participation in an anti-government organisation had been discovered, or appeared likely to be discovered shortly, would obtain a false passport in the false name they had used will [sic - when] participating in the group.
It is possible that Mr Sun lived and worked in Foshan prior to his arrival in Australia. Had the rest of his evidence been truthful and plausible, I might have accepted that he had some involvement in a small informal group which discussed politics while in that city. However, as the discussion above indicates, I did not find Mr Sun's evidence truthful or plausible. Indeed, after considering Mr Sun's evidence regarding Mr Sun's past activities in its entirely [sic - entirety], I found the overall pattern of fabrication, exaggeration and conceal [sic - concealment] such that I am unable to accept any of it. I do not believe that he founded and led a pro-democracy group in Foshan." (at 61.8-62.5)
"Refusal to issue Mr Sun a passport or other travel document" (62-64)
"... even if I accepted all of Mr Sun's claims regarding his activities in China at face value, I do not consider he fits the 'profile' of someone who would be denied entry to China." (at 62.10-63.1)
"Mr Sun's representatives have suggested that the Chinese authorities have refused Mr Sun a passport because they wish to obtain more information on those who were involved in the pro-democracy movement with him. This is a fanciful suggestion, unsupported by any evidence and, in my view, illogical. The Chinese authorities would surely have been much better able to obtain this information from Mr Sun if they issued him a passport and questioned him on return to China.
Ms Le has also argued that the Chinese authorities are paranoid about western spies and may suspect that Mr Sun is a spy because they have no record of his whereabouts for the last six years. This is a fanciful suggestion, unsupported by any evidence. ...
I do not believe that the Chinese authorities refused to issue Mr Sun [a passport]. Furthermore, I find his insistence that he had provided the officials with complete details and the statement that Hai Zhou St numbered consecutively from start to finish when in fact there are three separate sets of numbers for Hai Zhou North St, Hai Zhou Middle St and Hai Zhou South St a clear indication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status." (at 64.4-.9)
"Conclusions on Mr Sun's evidence regarding his past" activities" (64-65)
"I do not find Mr Sun's account of his past activities or problems to be credible or truthful. The overall pattern of his evidence leads me to the conclusion that he has exaggerated, distorted or fabricated the claims he has provided to the Department and the Tribunal.
As discussed above, I do not [sic - do] believe that Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement... Nor do I believe that he was forced to remain in hiding in Foshan for nearly four years, during which time he formed a pro-democracy group which was discovered shortly before his departure from China.
I believe that Mr Sun had a visa for Australia when he checked in to board his flight to Australia in Port Moresby. This falsehood together with the substantially different personal details he provided on his departure card from the PNG and his failure to provide a reasonable explanation for the destruction of his passport and boarding pass in Port Moresby raises serious questions about his identity and the manner in which he left China. And despite his claims to the contrary it is clear he did not provide the Chinese Embassy in Australia with sufficient evidence to identify him and supply him with a passport, and he gave false evidence to disguise this fact." (at 64.10-65.5)
"Application for refugee status and Federal Court appeal" (65-69)
"It is possible that the Chinese authorities may be aware that Mr Sun has applied for refugee status while in Australia. However, I do not consider this application or his Federal Court appeal would cause him serious harm amounting to persecution on his return to China." (at 65.6)
"... I consider he would at most face questioning, short-term study sessions or criticisms. Those punishments are not, in my view, of sufficient seriousness to constitute persecution. His refugee application may also be noted on his personal file. However, the evidence is that this would affect, at most, his prospects of obtaining work or promotion in the state sector. Such a notation would have little or no practical effect in the private sector, which according to Mr Sun's own evidence is rapidly expanding in Guangdong. In these circumstances it cannot be said that Mr Sun's right to earn a livelihood would be severely restricted as to amount to persecution under the Convention." (at 68.3-.5)
"Overall Conclusions"(69)
"From the evidence provided by Mr Sun I am unable to determine his identity, how and why he left China and why he does not wish to return there. He is clearly determined not to return to China and it may be that his determination is motivated by fear. However, from the evidence his [sic - he] has provided, I conclude that he does not have a well-founded fear of persecution in China for any of the reasons contained in the Convention. He is therefore not someone to whom Australia has protection obligations and is not entitled to a protection visa." (at 69.7)
4.3 Nineteen suggested bases for inference of actual bias
Mr Sun pleads that actual bias should have been inferred from some nineteen matters which I must now address.
"6.1 The decision of the Tribunal to reenter upon a determination of the claims made by the Applicant as to his activities in China."
I have dealt with much of this topic already. The Member's decision to re-enter upon Mr Sun's claims as to his activities in China was, in the light of the matters mentioned earlier, readily explicable otherwise than by reference to actual bias. It was open to her to think that the safe way to proceed was to "start from scratch".
"6.2 The nature and contents of the Tribunal's letter 8 December 1995."
On 8 December 1995 the RRT wrote to Ms Le, extending a further invitation to Mr Sun to attend an oral hearing because the Member had "a number of concerns" about the credibility of his claims. The letter, signed on behalf of the Deputy Registrar of the RRT, comprised 3½ closely typed pages and has been referred to in Mr Sun's submissions as the "First Adverse Matters Letter". It set out certain concerns of the Member.
The first was that Mr Sun's evidence about the events in which he claimed to have participated differed from accounts of those events in certain publications. The second was that, none of the street names on the map of Beijing held in the RRT's library, except for "Chang An Boulevard", resembled those mentioned by Mr Sun in connection with the protest march on 27 April 1989. The third was that the Member had difficulty accepting that Mr Sun was viewed as a leader in the pro-democracy movement, either by his colleagues or by the authorities. Finally, the Member doubted Mr Sun's claims that he fled Beijing in 1989 and remained in hiding until his departure in 1993.
The letter stated that the Member also wished to have an opportunity to clarify other aspects of Mr Sun's case, namely his stay in New Guinea, the photographs which he had provided to the RRT, the situation at the People's University of China on the morning of 4 June 1989, Mr Sun's decision to leave Beijing, and his foundation of a pro-democracy group in Foshan. The letter also responded to Ms Le's request for the RRT's reaction to photographs of a house in Guangzhou which had been provided by Mr Sun.
In his amended application, Mr Sun claims that actual bias may be inferred from the following aspects of the First Adverse Matters Letter:
"(i) failure to check the Mandarin spelling for
street names identified by the Applicant before concluding that they did not exist;
(ii) the contention that the Applicant no [sic - had no] reason to flee and remain in hiding until his departure from China in April 1993;
(iii) the assertions as to what occurred on 27 April 1989;
(iv) reliance on the Nicholas Kristoff anecdote;
(v) the nature of the response to the photographs of 159 Hai Zhu Road."
In my view, these aspects of the First Adverse Matters Letter, whether taken singly or together, are not evidence of actual bias. The RRT's letter merely expressed concerns, scepticism, doubts and queries, and, by implication, some tentative conclusions. The letter was written in order to allow Mr Sun an opportunity to respond to the matters raised (his representatives did respond by way of making further submissions and directing the RRT to further material). As noted earlier, bias is not established merely by showing that a decision-maker has formed and ventilated preliminary views, even where they indicate a present disposition on an issue which is adverse to one party.
The writing of the First Adverse Matters Letter, far from indicating actual bias, points in the opposite direction. A member of the RRT who was anxious to be sure that she correctly understood the material before her and that there was no answer to her concerns by way of countervailing
material or explanation, would write just such a letter.
For the sake of completeness, however, I will consider each aspect of the First Adverse Matters Letter particularised and specify, where appropriate, further specific reasons why those aspects do not establish bias.
Failure to check Mandarin spelling for street names
Mr Sun submits that once the Member had ascertained that the street names did not appear on its map of Beijing, on which, apparently, the street names were spelt in Mandarin, she did not consider the possibility that the names as provided by Mr Sun might be spelt, not in Mandarin, but in Cantonese, because, being determined to find against him, and having found what would pass for evidence against him, she did not wish to find countervailing evidence.
Mr Sun's submission disregards the simplest and most obvious explanation for the Member's failure to check a Cantonese map, namely, that the possibility that there was confusion between the two languages did not occur to the Member. Moreover, there is other cause for thinking that this explanation is preferable to that of actual bias. Once it was told that Mr Sun had provided street names in Cantonese, the Member readily accepted that the names appeared on a Cantonese map of Beijing. The issue was resolved at the hearing on 18 December 1995. Ms Le wished to call Mr Liu, a Chinese businessman who had recently been in Beijing and who was able to identify the
streets mentioned by Mr Sun on a map of Beijing (transcript at 3-4). When Mr Sun refused to answer the Member's questions the hearing did not proceed further, except for some oral submissions made by Ms Le. The Member offered, however, to consider Mr Liu's information about the streets if Ms Le would provide it (transcript at 10-11). Ms Le handed up the information in written form (including a map), together with written submissions (transcript at 17). Paragraph 3.1 of the written submissions states:
"The names as given in the [Presiding] Member's letter are the Cantonese rather than the Mandarin version of the Chinese street names. The streets are clearly marked on the map accompanying this submission and identified by Mr Sun in the Chinese characters with the point where he took the photographs also identified."
The map was not included in the material tendered on the hearing in this Court, but a handwritten note in the margin beside the passage just quoted states "Resolved at hearing". Paragraph 23 of Ms Le's final written submissions of February 1995 was as follows:
"The Tribunal states that the street names given by Mr Sun do not appear on a map. This is simply wrong. Would the Tribunal please have resort to a map in Mandarin rather than (as I assume) a map in Cantonese".
(The last sentence itself appears to have involved an erroneous transposition.) Again, in the margin is a handwritten note, this time reading "Already resolved at hearing".
The fact that the issue was so readily resolved suggests that the Member was open to be persuaded to accept that the streets existed.
Contention that Mr Sun had no reason to flee and hide
The First Adverse Matters letter stated:
"The Presiding Member also has difficulty accepting that Mr Sun fled Beijing and remained in hiding from June 1989 until his departure from China in 1993. While it is certainly true that many people were arrested during the crackdown following 4 June 1989, the evidence before the Tribunal indicates that the majority of those arrested were workers and that students who had been involved in demonstrations in the manner described by Mr Sun did not generally face detention or other serious punishment as a result of their activities in the period immediately following June 1989.
...
The evidence before the Tribunal also indicates that interest in pursuing even those who had been relatively active in 1989 began to decline a year or so after the event and has continued to decline since that time."
This passage went no further than to voice concerns, and to identify, in general terms, the reason for them. The letter also discussed in some detail the evidence before the Member in relation to the matters mentioned.
Assertions about 27 April 1989
The First Adverse Matters Letter contained no "assertions"
about what happened on 27 April 1989. Rather, it set out Mr Sun's evidence touching his claim that he had participated in a large demonstration on that date, following the formation of the "Students Autonomous Federation". The letter then set out a different account of the same demonstration given by Timothy Brook in his book, Quelling the People: the Military Suppression of the Beijing Democracy Movement (OUP, New York, 1992) at 32.
Reliance on the Nicholas Kristoff anecdote
The "Nicholas Kristoff anecdote" is as follows:
"An article by Nicholas Kristoff in the International Herald Tribune on 2 June 1993 also remarked on the recent easing of repression in China and noted the case of a young scholar wanted by the authorities in 1989, who turned himself in to police in 1992 only to be told they were no longer interested in him."
This summary of the article is included in the First Adverse Matters Letter as part of the description of the evidence available to the RRT which was seen to be at odds with Mr Sun's claim that he had fled and remained in hiding from June 1989 until his departure from China in 1993. The "Nicholas Kristoff anecdote" was one of several pieces of "evidence" before the Member. The First Adverse Matters letter summarised it as showing that:
"[W]hile it is certainly true that many people were arrested during the crackdown following 4 June 1989, the evidence before the Tribunal indicates that the
majority of those arrested were workers and that students who had been involved in demonstrations in the manner described by Mr Sun did not generally face detention or other serious punishment as a result of their activities in the period immediately following June 1989."
The aim of this part of the First Adverse Matters Letter was to put to Mr Sun material which suggested that even in the "crackdown" following 4 June 1989, the authorities showed little interest in "students" such as Mr Sun, as distinct from "workers", and that they had no interest in pursuing students who had participated in the demonstrations.
The Nicholas Kristoff anecdote called for a response from Mr Sun. Procedural fairness explains the fact that the RRT drew it to his attention.
Response to photographs of 159 Hai Zhu Road
The Member's response to the photographs was described as follows:
"The Presiding Member notes that these pictures were taken by an unnamed person who apparently did not ascertain who actually lived at the house in question."
This appears to be a comment directed to the weight which might be appropriately attributed to the photographs. It does not indicate that the Member had reached a final view from which she could not be persuaded to depart.
Other "Adverse Matters Letters"
Mr Sun also complains about two further letters which intervened between the hearing on 18 December 1995 and the Smidt Decision on 1 April 1996: a closely typed four-foolscap page letter dated 8 January 1996 ("Second Adverse Matters Letter"), and a one-page letter dated 13 March 1996 ("Third Adverse Matters Letter"), in each case from the RRT to Ms Le. I need not address the contents of these letters in detail. It suffices to say that they also outline the Member's concerns about Mr Sun's claims and her reasons for those concerns, and that they offer Ms Le an opportunity to address those concerns and to refer the Member to further material. While the letters show an inclination not to accept Mr Sun's claims, for the reasons given earlier in relation to the First Adverse Matters Letter as a whole, the Second and Third Adverse Matters Letters do not support the contention that the Member was biased against Mr Sun.
"6.3 The inadequacy, having regard to the evidence before the Tribunal, of the bases upon which the Tribunal rejected key claims of the Applicant, being his claims in relation to:
6.3.1 identity;
6.3.2 tertiary entrance mark;
6.3.3 the Xinhuamen protest on or about 19 April 1989;
6.3.4 the March of 27 April 1989;
6.3.5 the period of 27 April to 3 June 1989;
6.3.6 fleeing to Foshan and remaining there in hiding."
The Member's findings in relation to these claims were quoted at length in 4.2 above.
The Minister submits that this "particular" is no more than a claim that the Member formed negative views about Mr Sun's allegations that were not supported by the "true facts". According to the submission, Mr Sun complains merely that other preferable interpretations of the material were open. The Minister submits that this does not establish actual bias. He submits that the Member, having an inquisitorial role, was obliged to form views about Mr Sun's claims and to decide whether to initiate inquiries. He points out that, "Wednesbury unreasonableness" is not an available ground of review: para 476 (2) (b) of the Act. The Minister submits that Mr Sun seeks to undermine the Member's findings of fact as "unreasonable", a course which is not open under the Act, and that in order to establish actual bias, Mr Sun must establish, at least, that there was no probative material capable of supporting the Smidt Decision, that is to say, that it was "perverse": he refers to Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 (FC) at 199F.
I accept the Minister's submission that in order to establish actual bias, it is not sufficient to show that a particular finding of fact made by the Member is unreasonable, and that it is necessary to show that there was no probative material supporting that finding. It is necessary to consider Mr Sun's submissions in relation to the six matters specified in order
to determine whether this test is satisfied in relation to any of them.
Identity
The Member found that Mr Sun had possessed a passport and visa for Australia when he boarded his Air Nuigini flight; that he had completed his departure card substantially in accordance with the details contained in that passport; and that he destroyed his passport in order to conceal information about his identity and the manner in which he had departed China. The Member considered Mr Sun's failure to seek evidence from the friend with whom he claimed to have lived in Papua New Guinea, a further indication that he was concealing information about his true identity.
Mr Sun submits, first, that Air Nuigini's denial that he would have been allowed to board without a visa should be disregarded as being biased for self-interest since it was a response by Air Nuigini officials to an allegation against their employer, and, secondly, that there is no record of the issue of a visa for Australia to "Sun Jugu" or "Jugu Sun", the names filled in on his departure card.
The Member noted that airlines face significant fines under the Act for allowing passengers to travel to Australia without the necessary visa (at 28). She also noted that Mr Sun was not fleeing persecution in Papua New Guinea, and that he could have applied for a visa for Australia in that country, since
immigration officials there had accepted his passport as genuine (at 28-29). The Member inferred from these facts that there was "no more than a remote possibility that even the most compassionate booking agent would have allowed him to board the plane without a visa" (at 29). She also referred to evidence that the particular agent who had boarded Mr Sun had refused to board passengers without visas in the past, even when there were compassionate reasons for permitting them to board, and that the agent had provided a statutory declaration stating that Mr Sun's passport had contained a visa (at 29). Mr Sun points out that the Member did not obtain the statutory declaration said to have been made by the agent.
The Minister submits, first, that it does not follow from the fact that the airline had a motive to lie, that it in fact lied, and, secondly, that the motive to lie was also a motive not to allow a passenger to board without a visa.
Mr Sun submits that his passport cannot have matched the details provided in his departure card and have contained a visa for Australia, because there is no record of a visa being issued to a "Sun Jugu" or "Jugu Sun", the names on his departure card. He says that the Member was aware of this problem, and, having rejected his claim that the details on his departure card must have differed from those in his passport because migration officials would have noticed the differences, sought to overcome the problem in the following passage:
"I believe that the passport Mr Sun held when he boarded his flight from Port Moresby to Australia contained an Australian Visa and contained different personal details (age, occupation, marital status and possibility [sic] even name) from those which Mr Sun claims it contained." (at 29.9)
Mr Sun submits that this exposes an inconsistency which betrays actual bias. However, the Minister submits that the Member's reference to the possibility of the name in the passport being the same as the name on the departure card simply reflects the fact that there was no way of being certain what name was on the passport, particularly given the possible spelling variations, and the "implausibility" of Mr Sun's own account of these matters.
The inferences drawn by the Member differed from those contended for by Mr Sun, but it cannot be said that there was no material at all from which they could be drawn. Mr Sun fails to establish that the Member's finding in this respect shows bias.
Mr Sun submits that the failure to investigate whether a visa had been issued in the names "Sun Jugu", "Jugu Sun", "Sun Jiang" or "Jiang Sun" also indicates actual bias. It is not correct, however, to say that no investigation was undertaken in this respect. On 6 October 1995, the RRT, apparently of its own motion, requested that "ORP [Onshore Refugee Processing Centre] Sydney" provide "[a] list of all visitor visa applications issued at Port Moresby, PNG to all Chinese,
Taiwanese and Hong Kong male nationals in the two months prior to 16 December 1993". An RRT internal memorandum dated 12 October 1995 records that the ORP had advised that the request had been forwarded to Port Moresby, that a likely response time was not known, and that a summons might be more effective. Accordingly, on 13 October 1995 the RRT issued a summons addressed to "Russell Faneburst, ORP, Sydney" requiring production of the list described above. An RRT internal memorandum dated 17 October 1995 records that the ORP had advised that it was unable to supply a list of applicants' names by country, and that a list of all visitor visa applications for the two month period was approximately 88 pages long. On 17 October 1995, the Member advised ORP that the summons was cancelled.
On 14 January 1996 Ms Le asked the RRT to cause the Department to inquire whether the Papua New Guinea passport control authorities had a record of "Sun Jiang" or "Jiang Sun" entering that country in the period 15 April 1993 to 30 April 1993. On 23 February 1996, the Member completed a "Country Research Request" form requesting that information be sought from the Papua New Guinea Consulate or Department of Immigration in relation to Mr Sun's entry into Papua New Guinea. The form of request was as follows:
"MR SUN'S REPRESENTATIVE HAS ASKED THE TRIBUNAL TO APPROACH THE PNG DEPARTMENT OF IMMIGRATION OR EQUIVALENT TO TRY AND OBTAIN INFORMATION REGARDING HIS ENTRY INTO NEW GUINEA.
ACCORDING TO MR SUN HE TRAVELLED BY AIR FROM HONG KONG TO NEW GUINEA ON OR ABOUT 24 APRIL 1993. HE ENTERED NEW GUINEA ON A PEOPLE'S REPUBLIC OF CHINA PASSPORT ISSUED IN THE NAME OF SUN JIANG, BORN 23 AUGUST 1971. THE PASSPORT CONTAINED A PNG VISITOR VISA. MR SUN CLAIMS BOTH THE VISA AND THE PASSPORT WERE BOGUS.
MR SUN DESTROYED HIS PASSPORT BEFORE ARRIVING IN AUSTRALIA.
THE ATTACHED PHOTOCOPY OF MR SUN'S DEPARTURE CARD APPEARS TO INDICATE THAT HE MAY HAVE TRAVELLED TO NEW GUINEA ON A DIFFERENT PASSPORT, AT A DIFFERENT TIME AND POSSIBILY [sic] UNDER A DIFFERENT NAME.
THIS CARD APPEARS TO STATE THAT HIS NAME WAS SUN JUGU, A MARRIED MAN BORN IN 1961 OR 1967, OCCUPATION MANAGER WHO REMAINED IN NEW GUINEA FOR ONLY THREE WEEKS. IT APPEARS TO INDICATE THAT HIS PASSPORT NUMBER WAS 0125427.
CAN YOU PLEASE CONTACT THE NEW GUINEA CONSULATE OR THEIR DEPARTMENT OF IMMIGRATION DIRECTLY AND SEE IF THEY CAN PROVIDE ANY INFORMATION N MR SUN'S ENTRY TO NEW GUINEA.
FOR EXAMPLE:
DO THEY HAVE A RECORD OF A SUN JIANG ENTERING NEW GUINEA ON OR ABOUT 23 APRIL 1993?
IF SO, DO THEY HAVE A RECORD OF A VISA BEING ISSUED TO THIS PERSON AND CAN THEY GIVE US A COPY OF THE VISA APPLICATION?
DO THEY HAVE A RECORD OF A SUN JUGU OR JUGU SUN OR A SUN JIANG ENTERING NEW GUINEA IN LATE NOVEMBER [sic] OR EARLY DECEMBER 1993?
IF SO, DO THEY HAVE A RECORD OF A VISA BEING ISSUED TO THIS PERSON AND CAN THEY GIVE US A COPY OF THE VISA APPLICATION?"
The terms of this request indicate that the Member sought to investigate both Mr Sun's claim and a possible alternative scenario, namely, that Mr Sun had entered Papua New Guinea only shortly before travelling to Australia.
The request was conveyed to the High Commission of Papua New Guinea in Canberra by facsimile transmission on 28 February 1996. On the same day, the RRT advised Ms Le that the request had been made. Ms Le responded to that letter on 1 March. She complained about the delay in resolving Mr Sun's case and urged that the RRT make its decision immediately by making an assumption that the outcome of the enquiry was favourable to Mr Sun. In a letter dated 13 March, the RRT advised Ms Le that it did not intend to await information from Papua New Guinea before making a decision. Notwithstanding this, the Member continued to seek the information prior to giving her decision on 1 April. As at that date, although the Papua New Guinea High Commission in Canberra had apparently passed on the request to Papua New Guinea, the information had not been provided from Papua New Guinea.
The Member did investigate the question whether a visa was issued to a person in the various names under which Mr Sun may have travelled. It was Ms Le's demand that a decision be made immediately that prompted her to determine Mr Sun's case without the information from Papua New Guinea in response to the second request. The repeated attempts to obtain information indicates that the Member maintained an open mind and was willing to ascertain whether or not Mr Sun's claims were true.
On the hearing before me, Mr Sun tendered computer records of information (name, sex, date and country of birth, passport
and visa numbers) maintained by the Department of Immigration and Ethnic Affairs in relation to the names "Sun Jiang", "Jiang Sun", "Jugu Sun" and "Sun Jugu". The records had been produced in response to a notice to produce given by Mr Sun on 20 May 1996. They had not been in evidence before the Member. I understand Mr Sun's submission to be that the Member could have sought this information from the Department, and that her failure to do so shows bias. I reject the submission. The Department's records tendered by Mr Sun do not indicate where visas were issued. The only thing that the Member could have been certain about was that if Mr Sun was issued a visa in any one of the possible names, it was issued in Papua New Guinea. In my opinion, the Member's decision to seek information from Papua New Guinea rather than from the Department reflects a view as to a source of information that was obvious and was thought likely to be useful or more useful, not a determination to reject Mr Sun's claim.
Mr Sun submits that even if the Member was not biased in concluding that he held a passport with an Australia visa, his claim about his identity, in so far as it is relevant to his claim that he participated in the pro-democracy movement, was supported by other evidence. First, he was in possession of the negatives of the photographs. Secondly, he had been diagnosed as suffering from severe post traumatic stress disorder, consistent with having witnessed the events in which he claimed to have taken part. Thirdly, the address 159 Hai Zhu Road Guangzhou did exist, contrary to the claims of the
Chinese authorities. Mr Sun submits that in the light of all this evidence, the Member's rejection of his claim about his identity is evidence of actual bias.
In my opinion, the Member's rejection of Mr Sun's claim as to his identity, notwithstanding this evidence, does not indicate actual bias. As the Minister submits, Mr Sun's possession of the photographs and negatives and his symptoms of post traumatic stress disorder do not unmistakably point to his participation in the pro-democracy movement in 1989. Moreover, there was some probative material which supported the rejection of Mr Sun's claim that he took the photographs. A report dated 9 November 1995 from the Department's Document Examination Unit stated that they had been taken by a photographer with "some experience, possibly in journalism" rather than by a "novice photographer", that they did not appear to have been taken with "a basic 35 mm camera", and that "[t]he camera had a telephoto lens attached for some if not all the photographs, with the photographer generally in an elevated position." The little information that Mr Sun provided about the taking of the photographs suggested that he did not have sophisticated equipment. Further, as the Minister submits, Mr Sun's claim that the address 159 Hai Zhu Road Guangzhou existed, contrary to the claims of the Chinese authorities, is misleading, because Mr Sun had failed to provide the complete address. Mr Sun has not shown that there was no probative material whatever supporting the Member's rejection of his claims about his identity.
Mr Sun also complains that the Member failed to investigate whether his parents lived at 159 Hai Zhu Road. Ms Le submitted to the Member that the address existed, and provided photographs of premises bearing the number "159" and the words "Hai Zhu" in Chinese characters. At the hearing, the Member expressed the view that it would be helpful if the RRT were provided with information about the identity of the photographer and the circumstances in which the photographs were taken Ms Le subsequently provided more detailed information showing that the photographs had been taken by an employee of a migration agent in China pursuant to instructions from Mr Sun's legal representatives. The photographer was not asked to identify the occupants of the premises because, so it was said, this might have exposed them to "unwelcome" attention from the Chinese authorities.
In a letter dated 14 January 1996 Ms Le requested, apparently not for the first time, that the RRT cause representatives of the Department of Foreign Affairs and Trade or of the Department of Immigration and Ethnic Affairs in Guangzhou to investigate whether Mr Sun's parents lived at 159 Hai Zhu Road. On 5 February, the RRT advised Ms Le that the request would not be acceded to.
Mr Sun submits that, having concluded that he was not who he claimed to be, the Member realised that the outcome of an inquiry into whether his parents lived at the address was critical to his case. He submits that the Member knew that if
they were found to be living there, "this would completely establish [his] identity as he claimed it and exclude the adverse identity finding...". He refers to the terms of the following research question written by the Member on a "Country Research Request" form dated 23 February:
"Can you also ask DFAT whether their post in Guangzhou would be prepared to check whether somebody lives at an address in the city - or lived there prior to 1993 - this information would help in establishing an applicant's credibility or lack thereof."
This request was apparently initially made during a discussion between the RRT and Department of Foreign Affairs and Trade ("DFAT") on 27 February 1996.
On 28 February, the RRT advised Ms Le that the requested investigation would be conducted after all:
"The Presiding Member, Ms Smidt, has asked me to advise you that she has reconsidered her decision not to conduct the investigations you have requested in New Guinea and Guangdong.
...
The Australian Post in Guangdong has been asked to ascertain whether Mr Sun's parents live at 159 Hai Zhu Road. Ms Smidt has asked me to point out that she had initially declined your request to conduct this investigation because she is inclined to the view that, even if Mr Sun's parents do reside at 159 Hai Zhu Road, this does not necessarily indicate that the Chinese authorities have lied in order to deny him a passport because of his political activities. However, she is anxious to conduct as thorough investigation as possible into Mr Sun's case and has therefore asked DFAT to make these checks before making a decision on his case."
On 29 February, the RRT wrote to DFAT providing information required by it. On 1 March, Ms Le wrote to the RRT in response to its letter of 28 February, complaining about delay in resolving Mr Sun's case. The letter stated that given the Member's "present inclination", "I do not see how conducting `as thorough investigation as possible' could alter the outcome". The letter concluded with the following paragraphs:
"6 In my submission the Tribunal should proceed immediately to make its decision and assume that the outcome of the enquires [sic] was positive to Mr Sun. To do so would be the only way to obtain a `fair, just, economical, informal and quick' review. Particularly, when other matters upon which Mr Sun's credit has been challenged have been satisfactorily answered.
7 I ask you for your urgent substantive response to the matters raised in this letter."
On 13 March, DFAT advised the RRT by facsimile message that Hai Zhu Road was divided into north, middle and south, and that each section was numbered independently. The message noted DFAT's understanding that the Member no longer wished to continue with the inquiry as to whether Mr Sun's parents lived at the address or had lived there prior to early 1993. Apparently this change of position had resulted from Ms Le's request that a decision be made without further delay (Reasons for Decision at 21). On the same date, 13 March, the RRT wrote to Ms Le advising her of the information received from DFAT, that is to say, that the numbers in Hai Zhu Road did not
run for the whole length of the road. The letter stated:
"This being the case it appears that the address given to the Chinese Consulate in Australia was incomplete.
...
Should you or Mr Sun wish to make any comments on this information, please forward them to the Tribunal by close of business, Wednesday 20 March 1996."
Ms Le's "Preliminary Submissions" dated 9 October 1995 had, in fact, already explained that Hai Zhu Road was divided into north, middle and south, but had asserted that "[t]he street numbers run consecutively for the whole length of the street" (para 9 and accompanying map). The Member preferred the information provided by DFAT as to three series of numbers, to Ms Le's statement that there was only one series.
Mr Sun asserts that the Member's failure to seek confirmation that his parents lived at 159 Hai Zhu Road Guangzhou and to seek corroboration from them of his claim about fleeing to Foshan and the visits by the authorities (referred to as the "PSB") indicates actual bias. The Member acknowledged that a favourable outcome to this line of inquiry would assist in establishing Mr Sun as a credible witness. However, she did not acknowledge that a favourable outcome would preclude a finding that Mr Sun was not who he claimed to be. Evidence that Mr Sun's parents lived at the address nominated would not prove that he was a person who had been actively involved in
the 1989 pro-democracy movement. It appears that the Member's chief, if only, interest in the outcome of the inquiry was to ascertain whether the Chinese authorities had falsely stated that the address did not exist. Their having done so would have been relevant to the issue of a real chance of persecution. Having ascertained that the address was incomplete and that the Chinese authorities could therefore not be taken to have lied, the Member's chief or only purpose was satisfied. Her failure to inquire further as to the identity of the inhabitants of "159 Hai Zhu Road" does not indicate that she was biased against Mr Sun.
Tertiary Entrance Mark
Mr Sun claimed that he had obtained a score of 819 in his university entrance examinations in 1988, out of a total possible score of 900. He said that previously the total possible score had been 640. The Member had before her a letter dated 1 February 1996 from the Education Office of the Consulate General of the People's Republic of China in Sydney advising, relevantly, as follows:
"The national entrance examination for entry into tertiary study in China is divided into two types, one is for science and engineering and the other is for liberal arts. In 1988, the total score for science and engineering was 710 and that for liberal arts was 640." (underlining supplied)
She also had a letter dated 11 January 1996 from the National Office of Overseas Skills Recognition ("NOOSR") within the
Department of Employment Education and Trade. This letter gave more detailed information as follows:
"The total possible score which a student can obtain for entrance to academic study in China. Students sit for either the science or the humanities stream papers. The science stream papers are mathematics, physics, chemistry, biology, Chinese, a foreign language and politics. The humanities stream subjects are mathematics, chinese, history, geography, a foreign language and politics. All examinations have a maximum mark of 100 except for mathematics and Chinese (120) and biology (70). While the examination is referred to as national, in fact there are province-by-province differences in calculating total scores. The most common method appears to be aggregation, with the maximum score in the science stream 710-720 (bonus marks are available through supplementary questions) and the maximum score in the humanities stream 610-620. Recently other methods have been used, such as a percentile ranking on a scale of 900 in Guandong Province. (Shanghai has had its own CEE since 1993 with a different scoring system.)" (underlining supplied)
The RRT had written to the Foreign Affairs Office of The People's University of China in Beijing on 4 October 1995, but to no avail.
The Member found that the inconsistency between Mr Sun's claim and the information provided by the Chinese Consulate was a "strong indication that he did not enter the People's University of China in Beijing in 1988" (at 31).
Mr Sun gives the following relevant particulars of actual bias:
"(a) There was reason to doubt the veracity or accuracy of the information provided by the Chinese Consulate (cf Decision 30.8) namely the demonstrated falsity of a key part of the only other piece of information ever provided by the consulate, that the address 159 Hai Zhu Road Guangzhou does not exist;
(b) the Tribunal failed to take any or proper account of the fact that
(i) the Applicant's claim in context was a claim about his tertiary entrance score achieved at the conclusion of secondary school in Guangdong Province;
(ii) NOOSR noted that methods of calculating scores can vary from province to province and yet the information provided by the Chinese consulate in relation to the maximum score for entrance into economics at the Peoples University of China drew no such distinction.
(c) The Tribunal failed to undertake investigations which to the Tribunal's knowledge were practicable and which could have falsified the adverse conclusions reached by the Tribunal, namely:
(i) seeking further information from the National Office of Overseas Skills Recognition on when Guangdong province adopted the system of ranking that had a maximum tertiary entrance score of 900.
(ii) seeking that information from the relevant authorities in Guangdong."
The claim by the Chinese Consulate that the address "159 Hai Zhu Road" did not exist was not proved false. On the contrary, it was proved that the address, stated in that form, was incomplete and could be said not to exist.
In her Reasons for Decision, the Member referred to the advice from NOOSR of the "recent" change in Guangdong Province. She remarked that there was nothing to indicate that those who had sought entry into the People's University of China in 1988 had been assessed out of a total of 900 points. In using the word "recently", NOOSR was speaking as at 11 January 1996. The suggestion that this did not extend back as far as to 1988 does not betray bias. Perhaps it would have been prudent for the Member to have made a further inquiry of NOOSR as to "how recently" the system of grading out of 900 had been introduced in Guangdong Province, but this is another matter.
But as the Minister points out, the Consulate provided information specifically in relation to 1988, the critical year, and the discussion of the use of other grading methods "recently" in the letter from NOOSR was followed by a reference to the system in Shanghai in 1993, so that it may well be that the word "recently" was used to mean "more recently than 1993".
Be this as it may, the Member's failure to seek further information from NOOSR is not evidence of bias.
Xinhuamen protest on or about 19 April 1989
The Member concluded that Mr Sun did not participate in the Xinhuamen protest on 19 April 1989 because his account of the event differed significantly from other published accounts (Reasons for Decision at 32-35).
Mr Sun gives the following particulars of actual bias:
"(a) the account given by the Applicant is consistent with the account by Professor Brooks of the second protest on 19 April 1994 [sic - 1989].
(b) Professor Brooks is relied upon by the Tribunal as authoritative.
(c) no other account relied upon ... by the Tribunal which adverts to noise inconsistent with the Applicant's account is also consistent with the Brooks account."
The Member referred to five published accounts of the events of 18 and 19 April 1989 and noted that there were inconsistencies between them. She acknowledged that there had been some confusion in, and differences between, the published accounts, as between the protests on 18 April and 19 April. Notwithstanding this, the Member said that none of the five accounts was consistent with Mr Sun's account of a "silent sit down protest" on Wednesday 19 April 1989. Mr Sun submits that the finding that he did not participate in the 19 April protest indicates actual bias, because, upon analysis, some of the accounts may be "consistent with" or "not inconsistent with" his description. It suffices to say that in my view, the conclusion reached by the Member does not point to bias. She may not have analysed the five accounts in the greatest depth possible; she may not have made the finding that every person placed in her position would have made; but she is not shown to have been biased.
March on 27 April 1989
The Member found that Mr Sun did not participate in the march on 27 April 1989. She said that although many of the details provided by him about the march accorded with published accounts, there were discrepancies. She identified two main discrepancies. The first is that Mr Sun stated that there was no military presence, while the published accounts recorded that, for the first time, there was a military presence during the march. The second is that Mr Sun described the event as a three hour march beginning and ending in Tiananmen Square, while the published accounts indicate that the march did not end in Tiananmen Square and that the march began on the morning of 27 April and lasted into the night.
Mr Sun gives the following particulars of actual bias:
"(a) The variations between the accounts of this event cited by the Tribunal in the Decision between 35.7 and 39.1; and
(b) the general consistency between the account of the Applicant and various of the accounts cited by the Tribunal particularly when regard is had to the context in which the Applicant's evidence on this aspect was given and the questions to which he was responding (cf Final Submissions 19-22.3)."
In my opinion, it was possible for the Member, consistently with the absence of bias, on the basis of the discrepancies between Mr Sun's account and the published accounts, to conclude that Mr Sun did not participate in the march.
Period from 27 April to 3 June 1989
The Member rejected Mr Sun's claim that he was involved in the pro-democracy movement between 27 April and 3 June 1989. Her reason was that he had failed to provide a detailed account of his activities and the details which he had provided were inconsistent with published accounts of the relevant events. In particular, Mr Sun did not mention an important demonstration on 4 May 1989. He claimed that he stayed in Tiananmen Square for most of the period, returning to his dormitory at the university only occasionally. The material before the Member indicated that most of the student demonstrators marched between their campuses and the Square during this period.
Mr Sun gives the following particulars:
"(a) The Tribunal does not advert to the explanation provided in paragraph 12 of the Migration Agent's letter of 14 January 1996.
(b) There is no evidence that the Applicant ever claimed that he attended the protest on 4 May 1989 (cf Decision 39.8)."
Paragraph 12 of Ms Le's letter to the RRT dated 14 January 1996 was as follows:
"12 To take one example: the alleged lack of personal detail in Mr Sun's account a matter which apparently causes the Presiding Member to doubt the veracity of his claims.
12.1 It is manifest from a reading of the transcript that Mr Sun had great difficulty understanding precisely what
it was that Mr Fordham was seeking (see esp T44/20ff). In this context it is noteworthy that the quality of the interpretation is, on the face of the transcript, manifestly poor.
12.2 After the luncheon adjournment Mr Sun returned (after, one assumes, having had the matter explained to him by his solicitor) and began to provide the type of `personal detail' which Mr Fordham was seeking: he spoke of seeing the `what happened' to Mao Ling and his other classmates (T48/10) and the fatigue of Zheng Ging Choon, a teacher who he knew at the Beijing Teacher Training University (T46/17). After a time Mr Sun enquired whether Mr Fordham had questions (T46/31).
12.3 In fact it is readily arguable that it was Mr Fordham who was being obtuse. Mr Sun had provided personal detail. Even Mr Fordham recognised that he had been doing this (T45/4). What Mr Fordham found incredulous was that Mr Sun 3 years after the event could not recall precisely how long it was between the first time he left the Square to attend to mundane matters of the necessities of life and the second such occasion (see T43/32 cf T38/15ff).
12.4 My legal advice is that the High Court in its original jurisdiction (being the only place where Wednesbury unreasonableness can now be argued) is unlikely to be so incredulous.
12.5 Ironically Mr Fordham must have been satisfied because he accepted the [sic] Mr Sun's account of the facts prior to his departure from China in its entirety."
The reference in particular (b) quoted earlier to the Smidt Tribunal's "Decision 39.8" is a reference to the Member's criticism of Mr Sun's failure to "recall" the demonstration of 4 May 1989.
The Member considered the responses which Mr Sun had made to the questions put to him by the Fordham Tribunal, and concluded that there was a lack of personal detail in his account of the events between 27 April and 3 June 1989. In my view, the omission of any express reference by the Member to the explanation offered in para 12 of Ms Le's letter does not establish that she did not take it into account.
Although Mr Sun was not asked about the demonstration on 4 May specifically, he was asked about important events in which he did not personally participate. The Minister refers to the following passage from the transcript before the Fordham Tribunal.
"MR FORDHAM: I am asking you to tell me what happened to you during that period from 27 April 1989 until 4 June 1989? ... Give me as much detail as you can possibly remember. ...
THE INTERPRETER: Is it only about myself not everyone?
MR FORDHAM: No, it is only about yourself but of course if there were important incidents though where there were many students or soldiers or police I want you to give me those details." (underlining supplied)
Even if this question had not been asked, it would not, in my opinion, be perverse for the Member to take the view that if, as he claimed, Mr Sun had stayed in Tiananmen Square for most of the period between 27 April and 3 June, he would recall something about the demonstration on 4 May, since participants marched from their universities to the Square and back again, and also because 4 May marked an important anniversary for the students.
For these reasons, I consider that the Member's reliance on Mr Sun's failure to mention the event does not indicate actual bias.
Fleeing to Foshan and hiding there
Mr Sun submits that the Member's doubting of his claim that he fled Beijing in 1989 and went into hiding in Foshan was perverse and indicates bias. It is apparent from correspondence between the RRT and Ms Le and the Reasons for Decision that the Member had "difficulty in accepting that Mr Sun fled Beijing and remained in hiding from June 1989 until his departure from China in 1993" (First Adverse Matters letter, p 2, Reasons for Decision at 59-60). The first paragraph under the heading "Conclusions on Mr Sun's claims regarding the authorities' continued pursuit of him" in the Reasons for Decision is as follows:
"There is no doubt that many students who participated in the demonstrations in 1989 fled Beijing in the period immediately following the military crackdown in June 1989 as they feared arrest or even worse treatment by the authorities. Nor is there any doubt that prominent leaders of the student movement who fled the capital were sought by the authorities throughout China at the time. It may well be that the local authorities sought to question, and perhaps even detain, less prominent students who had been studying in Beijing during the time of the demonstrations and this may have involved questioning of their families. However, the evidence before the Tribunal [does not] suggest that someone who participated in the 1989 pro‑democracy movement in the manner claimed by Mr Sun would have [been] actively pursued by the police
for nearly four years after the military crackdown which ended the pro‑democracy demonstrations. Thus, even if I accept Mr Sun's claims regarding 1989 in their entirety, I would find the possibility that he was still of serious interest to the authorities in early 1993 to be remote. However, as noted above, I find that Mr Sun has greatly exaggerated, and possibly fabricated, his claims regarding his participation in 1989. In these circumstances, I do not accept that the Chinese authorities continued to seek him from 1989 until 1993 or that [they] visited his parents from 1989 to 1993 because of his participation in the 1989 pro‑democracy movement in Beijing." (at 59-60)
The Member rejected Mr Sun's claim that he was of continuing interest to the authorities until he departed China in 1993. She did not expressly reject his claim that he fled Beijing for Foshan in 1989, although she rejected his claims that he participated in the pro-democracy movement there.
Having rejected Mr Sun's claim that he participated in the pro-democracy movement in Beijing, the Member rejected his claims that he was forced to go into hiding in Foshan by reason of that earlier involvement. Further, the Member found it unlikely that Mr Sun would have fled China using a passport with the same false name that he had assumed in Foshan, if he had been hiding from the authorities there from mid-1989 until he left China in 1993.
The conclusion reached by the Member in respect of Mr Sun's claim of his flight to and hiding in Foshan is not so inadequately supported as to point to bias.
"6.4 The making of adverse findings in terms no non-biased Tribunal could reasonably have used having regard to the evidence before the Tribunal."
Mr Sun relies on the "terms" of the following particular findings in support of the present submission:
"(a) the finding that it was `extremely unlikely' that the Applicant would have remained in Tiananmen Square following 27 April 1989 as claim [sic] by the Applicant (Decision 40.5)
(b) the finding that the Applicant's claims in relation to Foshan were `totally implausible'
(c) the finding that the likelihood that the Chinese authorities pursued the Applicant as he claimed was `fanciful' (Decision 60.7)"
Mr Sun submits that the "use" of evidence in this way is "perverse".
The Minister submits that the Member expressed her findings firmly in order to make it clear that she positively disbelieved Mr Sun.
"Mere doubt or concerns as to the applicant's credibility would not be sufficient to exclude the possibility [that there is a core of acceptable evidence within the applicant's testimony]. For this result, a positive state of disbelief would be required on the part of the decision-maker." (Guo Wei Rong v Minister for Immigration & Ethnic Affairs (1996) 135 ALR 421 at 458 per Foster J)
"The benefit of the doubt should ... only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's credibility. The applicant's statements must be coherent and plausible, and must not run
counter to generally known facts." (UNHCR Handbook)
Similarly, in Ramadan, Kirby P said:
"Cases will arise where a judge feels obliged to express an opinion as to the truthfulness or untruthfulness of a party or witness. If this is in fact the basis of the judge's decision, candour and honesty in the expression of judicial reasons requires the conclusions to be stated. Yet judges will still exercise judicial restraint in giving expression to apprehended falsehood and in accusing a party, or a witness, of lying." (at 4)
The Member was entitled to reject Mr Sun's evidence only on the basis that she positively disbelieved it. She was not entitled to reject Mr Sun's account merely because she thought an alternative scenario more probable. Having set out at length the many reasons why she doubted Mr Sun's evidence, the Member was entitled to express her disbelief in the terms in which she did. The following passage from the judgment of Rolfe AJA in Ramadan is pertinent:
"If a trial Judge comes to a firm conclusion that a witness should not be accepted, there can be no doubt it is part of the judicial duty to state his reasons for so doing. It may well be they cause alarm or hurt to the person about whom the observations are made. But if they are made in the context of deciding disputed questions of fact by a disclosed reasoning process, and if they are necessary to show why such questions have been resolved in a certain way, a failure by the trial Judge to state them not only breaches his or her obligation to give reasons, but leads, potentially, to injustice for the party who or which would otherwise benefit from them." (at 9)
The terms in which the Member expressed her view of Mr Sun's evidence reflect her understanding of what was required of her having regard to the view that she had in fact formed, not bias.
"6.5 Reliance on the material referred to in the 5th paragraph on page 64 of the Decision as a 'clear indication that [the Applicant] is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status' in circumstances where the Applicant's claim was that he had provided correct information (as distinct from complete information) and where there was no necessary reason for the Tribunal to conclude that the Applicant (rather than, for example, the photographer of 159 Hai Zhu Road) was the source of the statement that Hai Zhu Road was numbered consecutively from start to finish."
The fifth paragraph of page 64 of the Member's Reasons for Decision reads as follows:
"I do not believe that the Chinese authorities refused to issue Mr Sun [a passport]. Furthermore, I find his insistence that he had provided officials with complete details and the statement that Hai Zhou St numbered consecutively from start to finish when in fact there are three separate sets of numbers for Hai Zhou North St, Hai Zhou Middle St and Hai Zhou South St a clear indication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status."
There was evidence to the effect that Mr Sun's claim that he had provided complete information was incorrect. The Member was entitled to consider the submission received from Ms Le as to the numbering of Hai Zhu Road as a submission made on instructions from Mr Sun. This passage from the Reasons for Decision provides no support for the allegation that the Member was biased against Mr Sun.
"6.6 The nature and timing of investigations undertaken by the Tribunal."
According to Mr Sun's amended application, the nature and timing of a number of investigations undertaken on behalf of the Member indicate actual bias on her part.
"(a) The research request dated 27 September 1995 and the Case Management Action Request of 5 October 1995 are consistent with the Tribunal having formed a view that there could be no favourable decision on the papers and having determined that a hearing would be held and this notwithstanding the Tribunal's letters of 5 October 1995 and 3 November 1995 to the Applicant which seek to convey that a favourable decision on the papers was still a matter the Tribunal member was considering."
On 27 September 1995 the Member made the following internal "research request":
"The applicant, who is from Guangzhou, claims he enrolled to study economics at the Peoples University of China in Beijing in September 1988.
I have checked the NOOSR publication on higher education and it appears that graduating middle school students normally enrol in the universities in their own province, although enrolment elsewhere is possible - can you obtain advice on what subjects a student would need to enrol in economics at the Peoples University of China and in what particular requirements there are for students from other provinces.
Can you also obtain info on what subjects an
economics student would have been required to study in first year at the Peoples Uni of China if they enrolled in 1988 and, if possible, names and specialities of leading academics."
On 5 October 1995, the Member made the following internal "Case Management Action Request":
"Can you please telephone Marion Le and ascertain who currently holds the prints and negatives of the 20 or so photographs Mr Sun carried with him when he entered Australia. If they are held by her or Mr Sun, can you please advise her that I wish to examine them prior to a hearing and ask her to forward them immediately so that determination of her clients case can proceed. ..." (underlining supplied)
The requests indicate that the Member apprehended that a hearing might, not would, be necessary (the Case Management Action Request refers to "a" hearing not "the" hearing). At best, this material establishes that the Member did not cause Mr Sun's representatives to be informed that a favourable decision could not be made on the papers, prior to her deciding finally that it could not be. This is not evidence of bias.
"(b) The steps taken towards obtaining a list of applicants for visitor visas issued at Port Moresby to all Chinese, Taiwanese and Hong Kong male nationals in the 2 month period prior to 16 December 1993 (apparently in an effort to find ... the identity which the Tribunal had suspected or concluded the Applicant was seeking to hide) as against the failure of the Tribunal to pursue enquiries which might have corroborated the Applicant's claims that he arrived on 23 or 24 April 1993."
On 23 February 1996, the Member completed a "Country Research Request" form requesting that information be sought from the Papua New Guinea Consulate or the Department of Immigration in relation to Mr Sun's entry to Papua New Guinea, the terms of which were set out earlier. Those terms make it clear that the Member was seeking to investigate both Mr Sun's claim that he entered Papua New Guinea in April 1993, and an alternative scenario which she apparently thought possible, namely, that he had entered Papua New Guinea only a short time before travelling to Australia. The Member doubted Mr Sun's claim, but was still open to be persuaded as to its truth. This is evidence of an open mind, not of bias.
"(c) The covering letter dated 19 October 1995 from the Tribunal to the DIEA Document Examination."
The letter dated 19 October 1995 stated:
"The Presiding Member has reason to question whether this applicant attended any demonstrations or was present in Tiananmen Square on 3 June 1989 and therefore has doubts regarding the claim that he personally took these photographs during that period.
The Tribunal has in the past received photographs that have been copied from magazines and video tapes taken from television programs.
We would be grateful for any comments you can offer regarding these photographs and negatives, including, if possible, whether they were taken at the scene.
From the numbering and colour of the negatives, it appears that the photographs of the bodies come from two roles of film. Can you advise whether this is correct."
Again, the letter indicates no more than that the Member doubted Mr Sun's claim. It is consistent with the letter that she was still open to be persuaded as to its truth. This is not evidence of bias.
"(d) The request by the Presiding Member in relation to the maximum score obtainable in the Chinese college entrance examinations was not made until 3 December 1995, that is, not until after the hearing and after the date originally set for the close of submissions."
The requests to the Chinese Consulate and NOOSR for information in relation to the maximum score obtainable were, indeed, made on 10 and 11 January 1996. However, the RRT had previously requested information about "the entrance requirements ... for Chinese middle school graduates in 1988" from the People's University of China by facsimile transmission on 4 October 1995. It was apparently as a result of the lack of a response, that the RRT sought information from the Chinese Consulate and NOOSR. Some three months elapsed before the RRT wrote to these two alternative sources. However, it is apparent from the account of the delay in the matter generally which I give below, that the Member was attending to various other matters concerning Mr Sun's case during this period. These included a study of the lengthy and detailed submissions made on his behalf. In any event, inefficiency or tardiness on the part of the Member in pursuing one aspect of her inquiries is not evidence that she was biased.
The original deadline for submissions was 3 January 1996 (letter dated 18 December 1995 from the RRT to Ms Le). However, this deadline was extended, first to 15 January 1996 (letter dated 22 December 1995 to Ms Le), and then to 9 February 1996 (Case Management Action Request dated 16 January 1996). The RRT notified Ms Le of the information provided by the Chinese Consulate in a letter dated 13 March 1996 and invited her to respond to the information by 20 March. In these circumstances, the fact that the request for information was made after the initial deadline for submissions is irrelevant. The Member sought to avoid any unfairness resulting from the lateness of the inquiry and the receipt of the information, by allowing Ms Le further time in which to make submissions on the question. This is not the conduct of a decision-maker biased against Mr Sun. On the contrary, it indicates that the Member was prepared to be persuaded by submissions at the last moment to accept Mr Sun's claim that he entered the People's University of China in 1988.
"(e) The Tribunal did not respond to the investigation requests contained in the letter of 14 January 1996 until 5 February 1996 at which time the Tribunal refused the requests."
By her letter dated 14 January 1996, Ms Le requested that the RRT cause DFAT representatives in Guangzhou to ascertain whether Mr Sun's parents lived at 159 Hai Zhu Road, and to
cause the Department to inquire of Papua New Guinea passport control authorities whether they had a record of a "Sun Jiang" or "Jiang Sun" entering Papua New Guinea in the period 15 April to 30 April 1993 (paras 18 (b) and (c) on p 5 of Ms Le's letter dated 14 January 1996 to the RRT). The RRT refused these requests in a letter dated 5 February 1996. However, the Member subsequently decided that Ms Le's request should be met (letter dated 28 February 1996 from the RRT to Ms Le).
In its letter dated 28 February informing Ms Le that the investigations requested by her would be carried out after all, the RRT explained the reason for the earlier refusal:
"Ms Smidt has asked me to point out that she had initially declined your request to conduct this investigation because she is inclined to the view that, even if Mr Sun's parents do reside at 159 Hai Zhu Road, this does not necessarily indicate that the Chinese authorities have lied in order to deny him a passport because of his political activities."
It might be inferred that the reason the Member had refused Ms Le's request in relation to records of persons entering Papua New Guinea was because a similar investigation attempted earlier had proved futile due to the limited nature of the records maintained by the passport control authorities (see RRT file memo dated 17 October 1995).
Mr Sun has not established that the reason the two investigations were initially refused was that the Member was biased against him.
"(f) Research Request CHN11109 requesting a visit to Hai Zhu Road to check upon the Applicant's parents was not made until 23 February 1996."
It follows from what I have said under (e) above that the lateness of this request does not indicate bias.
"(g) The Applicant was not notified about the adverse information from the Chinese Consulate in relation to the maximum score for tertiary entrance in 1988 until 13 March 1996 notwithstanding that the Presiding Member was informed of that information on or about 1 February 1996. At no time was the Applicant notified about the potentially helpful information provided by NOOSR."
It will be recalled that in its letter to the RRT dated 11 January 1996, NOOSR provided the following information:
"While the examination is referred to as national, in fact there are province-by-province differences in calculating total scores. The most common method appears to be aggregation, with the maximum score in the science stream 710-720 ... and the maximum score in the humanities stream 610-620. Recently other methods have been used, such as a percentile ranking on a scale of 900 in Guangdong Province. (Shanghai has had its own CEE since 1993 with a different scoring system)." (underlining supplied)
By a letter dated 1 February 1996 quoted earlier, Song Shen of the Education Department of the Chinese Consulate in Sydney advised the RRT that the total possible scores were 710 for science and engineering and 640 for liberal arts in 1988. The RRT did not seek further information after receiving this letter, but advised Ms Le of the information received, by letter dated 13 March 1996, stating that it "raises questions about Mr Sun's claims that he entered the People's University of China in 1988". The RRT did not, however, inform Ms Le of the information which had been previously received from NOOSR.
Ms Le wrote to the RRT a letter dated 24 March as follows:
"I refer to your last letter raising, inter alia, information about the maximum score for tertiary entrance to an economics course at the People's University of Beijing in the 1988-89 academic year.
Mr Sun was asked about the maximum scores applicable to him without the contents of your letter being communicated to him. He stated that in his entrance year the maximum possible score was 900. When asked whether the maximum score had changed he replied that in the preceding period the maximum score had been changed from 640.
I am concerned that the Tribunal has received information that is mistakenly erroneous. Given the potential use of this information I ask that you seek affirmative proof of the maximum score being 640 in the 1988-89 academic year if the Tribunal is proposing to use this information adversely. Presumably, if the information the Tribunal has received is reliable a university document stating this fact can be readily provided.
You will be aware that, with all the best will in the world, the Department does make mistakes from time to time.
You have already received my representations in relation to delay and my objection to the entire fact‑finding exercise presently being undertaken by the Tribunal. I repeat those objections. However, it being clear that the Tribunal is proposing to undertake the fact‑finding exercise over my objections, would you please allow the applicant a short further period to attempt to address this adverse material. We have enquires [sic] in train and expect material shortly."
It appears that the RRT did not respond to this request in time for further submissions to be made by Mr Sun or by Ms Le on his behalf. The Smidt Decision was made seven days later, before any further material about the tertiary entrance score was to hand.
No explanation has been suggested for the RRT's delay from 1 February to 13 March in notifying Ms Le of the information received from the Chinese Consulate. Error and oversight are possible explanations. It is also possible that the Member thought it unnecessary to notify Ms Le of the information unless she proposed to rely on it adversely to Mr Sun, and that she did not determine to do so until Ms Le's final submissions were considered (the submissions were received by the RRT on 12 February). It suffices to say that the delay does not necessarily betoken bias.
It remains to consider whether the Member's failure to cause Ms Le to be informed of the potentially favourable information provided by NOOSR is evidence of bias. On 5 January 1996 the RRT had sought advice from DFAT as to whether it was obliged to disclose to an applicant material favourable to that applicant. The advice was apparently sought because Mr Sun's representatives had argued that the RRT was obliged, as a matter of procedural fairness, to disclose to them any material favourable to Mr Sun in the extensive materials available to the RRT. It should be noted that the advice was sought prior to receipt of the potentially favourable information from NOOSR. On 15 January, advice was received by
the Member that she was not obliged to disclose information favourable to an applicant, although a failure to consider such information might constitute a failure to take relevant considerations into account.
In my opinion, the Member's making of the request for advice about the disclosure of favourable information does not indicate bias. Mr Sun's representatives had already referred the Member to a substantial volume of material, and there had been an ongoing exchange of letters, references to materials and submissions. It is understandable that the Member wished to know the precise nature and extent of her obligation in terms of procedural fairness, in order to keep the investigation of Mr Sun's claim within manageable proportions.
Can the Member's failure to advise Ms Le of the potentially favourable information received from NOOSR be explained in the same way? I think that it can. Moreover, it appears from the Reasons for Decision that the Member formed a clear view that the reference to the change made "recently" in Guangdong Province had no relevance to the position back in 1988. She may have been right or wrong, but she is not shown to have been biased.
"6.7 The Tribunal's apparent cessation of a search for evidence on an issue once material adverse to the applicant has been located unless and until the Applicant was able to identify evidence or arguments undermining that adverse material."
Mr Sun submits that the Member ceased the search for evidence once material adverse to him had been located in respect of five issues.
"(a) The Tribunal's position on Xinhuamen protest on 19 April 1988 [sic - 1989] indicated by the Tribunal's letter of 18 [sic - 8] December 1995."
The matters raised in the RRT's letter of 8 December 1995 do not indicate the Member's "position", but merely her concerns about the credibility of various claims made by Mr Sun, which she wished to take up with him at an oral hearing. The letter refers to material which gave cause for a concern that Mr Sun may not have participated in the protest as he had claimed. There is no evidence of bias in these facts or in the course of events following the unproductive hearing on 18 December 1995.
"(b) The Tribunal's position on the 27 April March and its reliance in its letter of 8 December 1996 [sic - 1995] on the Munro account as evidence that the students did not enter Tiananmen Square."
What I have said above in relation to (a) is sufficient to dispose of this point.
"(c) The Tribunal's position on the effect of the `evidence before the Tribunal' relating to risk of persecution of those active in 1989 indicated by the evidence set out at .4 to .6 on the p 3 of the Tribunal's letter of 8 December 95."
Again, what I have said in relation to (a) above is sufficient to dispose of this point.
"(d) The evidence from the Consulate as to the maximum tertiary entrance score (Decision p 31) and the Tribunal's failure to undertake simple follow-up enquiries on the possibility - open on the face of the letter from NOOSR dated 11 January 1996 - that the Applicant's tertiary entrance score was in fact graded out of 900."
For reasons given above in relation to para 6.3.2 of Mr Sun's application under the heading "Tertiary Entrance Mark", I have concluded that the Member's failure to cause further inquiries to be made in relation to Mr Sun's academic score is not evidence of bias.
"(e) The Tribunal's position on the identity of the Applicant based on the departure card completed by the Applicant and the assertions of an Air Nuigini manager (Decision 28.7 - 30.8)."
For reasons given above in relation to para 6.3.1 ("Identity") of Mr Sun's application, in my view the Member's conclusion that Mr Sun was in possession of a passport with an Australian visa containing details substantially the same as those on his departure card, was not so inadequately supported by the material that was before her, as to suggest bias.
"6.8 The apparent failure of the Tribunal to undertake or carry through all or any substantial investigation of the evidence which might support the Applicant's case including, in particular, the decision to cancel the investigation relating to the occupants of 159 Hai Zhu Road notwithstanding that Tribunal knew that this enquiry could determine the Applicant's credibility or lack thereof."
I have already discussed the investigation undertaken in relation to visas for Australia issued in Papua New Guinea. This investigation was attempted twice, to no avail. Even after the Member had decided not to await information from Papua New Guinea before delivering her decision, she continued to press for that information.
The Member cancelled the investigation relating to the occupants of 159 Hai Zhu Road following Ms Le's insistence that a decision be made without further delay. The Member had previously acknowledged that "this information would help in establishing an applicant's credibility or lack thereof" (RRT Country Research Request dated 23 February 1996). There is a distinction between "would help in establishing" and "would establish".
I reject the suggestion that the Member deliberately failed to undertake or carry through investigations which might support Mr Sun's case.
"6.9 The suggestion (Decision 21) that the cancellation of the investigation request relating to the occupants of 159 Hai Zhu Road was in furtherance of a request made by the Migration Agent in her letter dated 1 March 1996 and the failure of the Tribunal to inform
the Applicant of this fact."
The Reasons for Decision do not suggest that Ms Le in terms requested that the particular investigation request be cancelled. The Reasons for Decision record, accurately, that Ms Le asked in a letter dated 1 March that finalisation of Mr Sun's case not be delayed further, that DFAT advised on 13 March 1996, that the three segments of "Hai Zhu Road" were numbered independently, and that the RRT's request that DFAT make inquiries concerning the occupants of the premises had subsequently been withdrawn (Reasons for Decision, at 21). Paragraph 6.9 of Mr Sun's application does not accurately or adequately describe the effect of the Reasons for Decision.
I gave an account above of the Member's chief or only purpose in having caused the investigation in question to be made. This did not relate to the identity of the occupants for the purpose of corroboration of one aspect of Mr Sun's evidence, but to the truthfulness of the Chinese authorities and thus to the "real chance of persecution" issue. Ms Le requested that the Member give a decision without delay and make an assumption that the result of the investigation was consistent with Mr Sun's account. The Member withdrew the request for the investigation but did not make the assumption requested. Further pursuit of the investigation was unimportant in the Member's mind, since her chief or only purpose in making the initial request had already been satisfied. In her view, the corroboration of Mr Sun's evidence on the issue of his
parents' address, was of peripheral significance. Her withdrawal of her request, apparently as a result of receiving Ms Le's letter, does not show bias.
"6.10The failure of the presiding member to take any or any adequate steps to have the RRT library or the RRT Research Section locate the documents referred to in the Tribunal's letter of 22 February 1996."
In her final submissions on behalf of Mr Sun, Ms Le requested that the Member refer to a total of 30 documents. These included "Human Rights in China - Stamping Out Dissent: Human Rights Conditions in China 1994" and "Human Rights in China - China Rights Forum Spring 1995 News Update - Sentences". On 22 February 1996, the RRT wrote to Ms Le requesting copies of those two publications. There is no evidence as to whether or not the RRT library had unsuccessfully attempted to obtain copies of them before requesting Ms Le to provide them.
Even if no such attempt had been made, the fact that Ms Le was asked to provide copies does not indicate bias. Ms Le had not specified the author, publisher, or other source of the two publications. This would have made it difficult, though perhaps not impossible, for the Member to obtain copies in or through the RRT library. To request that Ms Le provide copies was an obvious course available to be followed, even if not the only one.
"6.11 Reliance by the Tribunal on a portion of a
document or other evidentiary source adverse to the Applicant while neglecting to advert to or rely upon other portions of the same source favourable to the Applicant."
This paragraph seems to accept that there were portions of a document or other piece of evidence capable of supporting the Smidt Decision, but asserts that there were also portions capable of supporting a different outcome. The paragraph does not, therefore, represent a submission that the Smidt Decision was perverse in the sense that, relevantly, there was no material capable of supporting it.
In any event, the evidence does not show such a course of selective acceptance of evidence unfavourable to Mr Sun, and rejection of evidence favourable to him as might suggest bias. The acceptance and rejection of evidence is consistent with the Member's unbiased response to the material before her.
"6.12 The failure by the Tribunal to address evidence favourable to the Applicant:
(a) set out in the judgment of Beaumont J;
(b) identified in the Preliminary Submissions, Submissions of 18 December 1995 and Final Submissions filed on behalf of the Applicant and also in the Migration Agent's letter of 18 February 1996;
(c) evidence raising doubts about reliance on adverse DFAT material;
(d) the fact that the Applicant was suffering from acute Post Traumatic Stress Disorder."
The parties did not make submissions relating to this ground. Mr Sun did not direct the Court to evidence which shows that this material was not considered by the Member. It would have been impracticable for the Member to refer in her Reasons for Decision to every aspect of the voluminous material before her, and of the tortuous history of Mr Sun's claim. The fact that a particular document or part of a document is not referred to does not indicate that it was not taken into account. There is no evidence of actual bias in the matters mentioned.
"6.13 The Tribunal's conclusions on the risk of persecution in the People's Republic of China for a person such as the Applicant having regard to the reasons for decision and findings in other cases previously heard by Ms Smidt including, in particular, matters N94/03199, N93/00004, N93/00054, N93/00074, N93/00095."
The starting point for the Member's rejection of Mr Sun's claim that he risked persecution if he should return to China was the finding of fact that he was not involved in the pro-democracy movement as claimed. For reasons given earlier, this finding of fact may not be challenged in the present proceeding. Accepting the finding as correct, Mr Sun did not face a real chance of persecution if he were to return to China. The Member's decisions in other cases previously heard by her, based on different findings of fact, provide no support for the allegation that she was biased in this particular case.
"6.14 The delays that occurred in the processing of the Application by the Tribunal member."
Mr Sun claims that the Member delayed the resolution of his case unnecessarily and that this shows actual bias. It is necessary to consider in some detail the correspondence between the RRT and Mr Sun's representatives, and the time taken in relation to each element of the review process.
Beaumont J remitted the matter to the RRT on 23 August 1995. On 30 August, Peter Jackson of Walsh James, solicitors for Mr Sun, wrote to the RRT requesting that the hearing of Mr Sun's application be expedited because his continued detention at that time was contributing to his emotional problems. The letter enclosed a copy of a report by Dr Bruce Stevens, who diagnosed Mr Sun as suffering from post traumatic stress disorder. Dr Stevens concluded:
"Mr Sun is very distressed and in an apparently deteriorating condition. He clearly meets the criteria for Post Traumatic Stress Disorder and a Major Depressive Disorder. He may also have an anxiety condition as well. I would recommend immediate treatment for the depression. He should see a GP and possibly a psychiatrist and be assessed for non-toxic antidepressant medication. He should also see a counsellor with experience in treating PTSD. His present situation of being detained appears to be contributing to his emotional problems. However with a change in circumstances and professional help he should have every chance of a fully recovery."
On 12 September, Mr Jackson spoke to the RRT and was advised that "the hearing could not be set" because the RRT was awaiting material from the Minister. An RRT memorandum dated 13 September noted the request for an expedited hearing and stated that "[t]his matter is now ready for reconstitution". On 14 September, Mr Jackson wrote to the Australian Government Solicitor ("AGS") requesting that the Minister provide any necessary material to the RRT immediately. The AGS apparently believed that the Minister had provided the relevant material to the RRT, but the RRT advised Mr Jackson again on 19 September that it was still awaiting files from the Department. On 19 September, the RRT telephoned Mr Jackson and advised that the Tribunal had been constituted and that the request for expedition had been noted, but that no hearing date had been set. On 22 September, the RRT issued a summons for the production of the Department's files by 6 October. The files were received by the RRT on 5 October, by which time the Member had begun investigating the matter. In the meantime, Mr Sun's representatives had made a number of complaints about alleged delay. On 5 October, the RRT first requested that the photographs carried by Mr Sun when he entered Australia be produced.
On 9 October, lengthy "Preliminary Submissions" were submitted by Mr Sun's representatives. On 11 October, the RRT wrote to Mr Jackson seeking to clarify whether he was a registered migration agent. The letter also advised that a full de novo review of Mr Sun's case would be conducted, responded to requests for copies of various documents, and advised that the Member was aware of the state of Mr Sun's health and would
make every effort to complete the case as quickly as possible.
On 20 October, nine photographs which had been provided to the RRT by Mr Sun's representatives were sent to the Department's Document Examination Unit. Also on 20 October, the RRT wrote to Ms Le, requesting that those photographs which had not been produced, be produced. On 29 October, Ms Le wrote to the RRT agreeing to provide the remaining colour photographs. On 3 November, the RRT wrote to Ms Le again requesting that all outstanding photographs, including black and white ones, photographs be produced. On 9 November, the RRT received the report on the photographs from the Document Examination Unit.
In a letter dated 29 October, Ms Le had advised the RRT that Mr Sun did not wish to attend another hearing and requested an opportunity to respond to any adverse matters identified by the Member. The RRT's letter dated 3 November assured Ms Le that she would have an opportunity to comment on any adverse material. Nevertheless, on 22 November, arrangements were put in train within the RRT for a hearing to be fixed for 4 December 1995. On 29 November, Ms Le advised the RRT that adverse material would have to be addressed in writing in view of the state of Mr Sun's health. On 1 December, Ms Le called on the RRT to inquire if the hearing was to proceed on 4 December and was told that it was not. She informed the RRT that she would be seeing Mr Sun on the weekend of 2/3 December and would attempt to persuade him to attend a hearing. The hearing scheduled for 4 December was cancelled.
On 8 December, the RRT wrote to Ms Le outlining the Member's concerns about Mr Sun's claims - the First Adverse Matters Letter. The letter included a further invitation for Mr Sun to attend a hearing. Upon receiving this letter, Ms Le advised Mr Sun to attend a hearing, which was then scheduled for 18 December.
At the hearing on 18 December, Mr Sun refused to answer virtually all of the questions put to him by the Member. Ms Le made some oral submissions and handed up written submissions. On 19 December, Ms Le made further written submissions and requested additional time in which to prepare final submissions. On 22 December, the RRT told Ms Le that the Member "will get back to you in due course, in regard to the submissions".
On 8 January 1996, the RRT wrote to Ms Le again outlining the Member's concerns about Mr Sun's claims and imposing a deadline of 15 January for final submissions - the Second Adverse Matters Letter. On 14 January, Ms Le wrote to the RRT a letter incorporating submissions, requesting that certain further investigations be undertaken, and requesting a further extension of time for final submissions. This second request for an extension of time was acceded to and a new deadline of 9 February was set.
On 5 February, the RRT advised Ms Le that the further investigations requested in her letter dated 14 January would
not be undertaken. Ms Le's final submissions were received by the RRT on 12 February 1996. On 22 February, the RRT wrote to Ms Le requesting that she provide material referred to in her final submissions which was not in the possession of the RRT. On 28 February, the RRT advised Ms Le that the investigations she had requested in her letter dated 14 January would now be undertaken after all. On 1 March, Ms Le urged the RRT to make a decision immediately, and to assume an outcome to those investigations favourable to Mr Sun. On 13 March, the RRT advised Ms Le of the outcome of the investigation in Guangdong and stated that it would await information from Papua New Guinea before making a decision. On 24 March, Ms Le wrote to the RRT in response to expressed concerns about Mr Sun's university entrance examination mark. The Smidt Decision was delivered on 1 April.
Mr Sun's submissions in relation to delay emphasise the seriousness of his mental condition, point to the lack of any indication from the RRT file that the matter was being treated as urgent, and allege that Mr Sun was responsible for only three days' delay prior to the first scheduled hearing date, 4 December 1995. The submissions fail to recognise, however, that the delay up to 5 October 1995 was caused by the Department's failure to provide materials to the RRT, not by the RRT.
Further, Mr Sun and his representatives were responsible (I use the word not to attribute "blame" but to indicate
causation as a matter of objective fact) for much of the delay after 5 October 1995. First, the RRT first requested production of the photographs on 5 October 1995, but the black and white photographs had still not been produced as at 3 November. As a result, the RRT did not receive the report from the Document Examination Unit on the photographs until 9 November. Secondly, the submissions made by Mr Sun's representatives were lengthy and detailed, and would have required careful and time-consuming consideration by the Member. Thirdly, there was some confusion as to whether or not Mr Sun would attend a hearing. A hearing scheduled for 4 December was cancelled, apparently because Mr Sun had, on 29 November, indicated that he would not attend. It seems to have been for this reason that the First Adverse Matters Letter, which outlined concerns that would otherwise have been taken up with Mr Sun at that hearing, was not sent to Ms Le until 8 December. Following the hearing on 18 December, Ms Le forwarded four further sets of written submissions, two of which were lengthy and detailed. Ms Le sought, and was granted, an extension of time to prepare final submissions. Ms Le requested further investigations by the RRT as late as 14 January 1996, and responded to adverse matters as late as 24 March.
A little over seven months elapsed between Beaumont J's order remitting the matter to the RRT and the Smidt Decision. In the light of the delays caused by the Department in providing material, the delays caused on Mr Sun's side, the length and
detail of the submissions made on behalf of Mr Sun, and the complexity of the case generally, I do not think that there was delay by the RRT at all, and certainly no delay of such proportions as to indicate somehow that the Member was biased against Mr Sun.
"6.15 The unreasonableness of the deadline for further submissions set by the Tribunal in its letter of 8 January 1996 having regard to the circumstances in which that letter was transmitted to the Applicant as recorded in the Migration Agent's letter of 14 January 1996."
In a letter to the RRT dated 19 December 1995 Ms Le requested further time to prepare final submissions because she had been unable to research properly the matters raised in the "First Adverse Matters Letter". Ms Le stated:
"On Mr Sun's behalf, may I express my gratitude that the Tribunal is eager to make a decision quickly. However, it is plainly obvious that on the present state of the evidence [there appeared a footnote, the text of which read And in particular where Mr Sun has been unwilling or unable to give evidence], and having regard to the observations of the Tribunal during the hearing, that the decision is likely to be adverse to Mr Sun. In those circumstances it is imperative that I be given sufficient time to seek to assemble other material that may address the Tribunal's concerns. ... I submit that the Tribunal should not use a concern about the length of Mr Sun's detention as a basis for refusing me an opportunity to properly put his case..."
The RRT responded to this request as follows in a letter dated 8 January 1996, the "Second Adverse Matters Letter":
"You have requested additional time to conduct research and provide information to rebut adverse matters which you suggest have only recently been raised by the Tribunal. It is unclear which particular matters you wish to research. Mr Sun's identity and travel to Australia are issues which can only be addressed by Mr Sun himself. The Presiding Member's concerns regarding Mr Sun's participation in events in 1989 were raised in the letter dated 8 December 1995 and addressed in your submission on 18 December 1995. The issue of the current risk to participants in 1989 was first raised with Mr Sun during his interview with the Department in January 1994... Similar findings were made in [the Fordham Decision]. The Presiding member again raised these concerns in her letter of 8 December 1995 and at the hearing.
It appears that Mr Sun and his representatives have had ample opportunity to respond to the adverse matters raised by the current Tribunal...
The Presiding Member asks that you provide any additional evidence ... or submissions ... by close of business on Monday 15 January 1996. Further extensions of time will only be considered if you provide a detailed account of the matters into which you wish to conduct additional research and how long you anticipate this research will take by this date."
On 14 January Ms Le wrote to the RRT. The letter included her final submissions, but complained about the refusal of her request for further time. Ms Le explained that she had not received the RRT's letter dated 8 January until 11 January and had been able to consider it closely for the first time only on 12 January. Ms Le sought a further extension of time. On 16 January, Ms Le was advised that she had been granted an extension of time to 9 February.
I reject Mr Sun's submission that the initial refusal of Ms Le's request for additional time indicates bias. Ms Le's letter of 19 December 1995 was the third written submission she had made and her final submissions would be the fourth. The importance of resolving Mr Sun's case quickly had constantly been emphasised by his own representatives. The Member was entitled to disregard Ms Le's suggestion that the urgency was being used as an excuse to prevent her from presenting Mr Sun's case properly. Contrary to Mr Sun's submission, the fact that the extension of time was ultimately granted does not indicate that at the time the extension was first refused, the Member was so pre-occupied with the case against him that she was unable to recognise that there were good reasons for the request. The extension was granted for reasons different from those for which it was initially sought.
"6.16 The manner in which Tribunal approached the acquisition of the Applicant's Tiananmen Square photographs and the return of those photographs."
On 5 October 1995 the RRT contacted Ms Le by telephone and requested that the prints and negatives of the photographs which Mr Sun had carried with him when he entered Australia be sent to the RRT for examination. On 6 October, Ms Le wrote to the RRT recording her understanding of the telephone conversation the previous day. The letter stated that Ms Le had offered to bring the original photographs and negatives with her to the hearing, and that she had never refused to provide anything to the RRT. The letter continued:
"It was therefore ... a total surprise to me to hear from you that the Member was going to supoena [sic] me to `hand over' the photographs (negatives?)."
The letter repeated that Ms Le intended to bring the photographs and negatives to the hearing, but stated that they could be made available to the RRT earlier if required.
On the same date, 6 October, the RRT issued a summons to Ms Le requiring production of the photographs and negatives, and wrote to Ms Le explaining that the Member required the prints and negatives prior to the hearing and advising her that the summons had been issued.
On 9 October, Mr Jackson of Walsh James wrote to the RRT, advising that Ms Le had advised the RRT that she would bring the photographs and negatives to a hearing and that Mr Sun had no objection to making them available. The letter continued:
"... given that the Tribunal has already been provided with high quality laser colour photocopies of the photographs, Mr Sun's legal advisers do not see how there could be any conceivable need for access to the originals unless the Tribunal had in mind reconsidering whether Mr Sun ought be believed in what he says about his activities in China. Our disquiet has been heightened by the terms of your letter to Marion Le which in terms states that the originals are required `so that their authenticity can be checked and, if necessary, the results of these investigations discussed with Mr Sun at the hearing'. We trust that the reference to `the hearing' rather than `a hearing' does not reflect a pre-judgment of the matter `on the papers'.
Would you please advise in what way the Tribunal intends to `check' the authenticity of the photographs - does the Tribunal merely wish to
verify that the originals and negatives in fact exist? To the extent that the Tribunal wishes to have them examined by an expert we wish that such examination occur in the presence of an expert retained by the Applicant. Moreover, it would not be necessary for the experts to have access to all of the photographs and negatives. We are happy for the Tribunal to select the photographs and negatives for that purpose.
We utterly repudiate any suggestion that the photographs are not authentic and note that this is the first occasion that either the Minister or the Tribunal has raised this as an issue."
In response to the summons issued on 6 October, Ms Le produced nine of the "at least 28" photographs which had been in Mr Sun's possession when he had entered Australia. The RRT wrote to Ms Le on 20 October requesting that the remaining photographs and negatives be produced. On 29 October, Ms Le wrote to the RRT asserting that she had complied with the summons, which required production of only photographs taken in June 1989. The letter stated:
"I wish to state again that the need for a summons in this matter at all remains a matter of concern to me and my client. We have never sought to prevent the Tribunal and/or the Department examining the photographs and negatives."
On 3 November, the RRT wrote to Ms Le again requesting that the remaining photographs be produced. It appears that the remaining photographs were produced shortly after 3 November, the report of the Document Examination Unit being dated 9 November 1995.
I do not think that the manner in which the Member sought to gain access to Mr Sun's original photographs and negatives indicates that she was biased against him. There was apparently a misunderstanding between Ms Le and the RRT during the telephone conversation on 5 October as to Ms Le's willingness or otherwise to produce the photographs. It appears from Ms Le's letters dated 6 October and 29 October that she was offended by the issue of the summons issued to her, notwithstanding that the RRT also sent a letter explaining why the photographs were required. Furthermore, it is apparent from Mr Jackson's letter dated 9 October that Mr Sun's representatives were offended at the suggestion that his claims should be investigated. However, the investigation was conducted by the Member in the course of her properly carrying out her functions, not as a result of a pre-determination to find against Mr Sun.
"6.17 The treatment giving [sic - given] to the Applicant's photographs in the Decision."
In her Reasons for Decision, the Member noted that the Document Examination Unit report indicated that the photographs had not been taken using a standard 35mm camera, and that the Member had wished to discuss the circumstances in which the photographs were taken with Mr Sun at the hearing (at 18). The Member also referred to the various claims made by Mr Sun's representatives as to the value of the photographs (at 18-19). She noted that there were similar photographs in the public domain, and that the RRT had provided Ms Le with
photocopies of some examples. She did not find it necessary to make a finding as to whether Mr Sun had taken the photographs himself:
"... even if I accepted that Mr Sun had taken these photographs himself, I would find the likelihood that the Chinese authorities pursued him until at least early 1993 with the vigour he has claimed to be fanciful." (at 60)
It was open to the Member to doubt Mr Sun's claims about the photographs on the basis of the report of the Document Examination Unit and his refusal to discuss the circumstances in which they had been taken. Her doubts and her findings, on other grounds, that Mr Sun was not pursued by the Chinese authorities down to 1993, were not "perverse" and are not evidence of actual bias.
"6.18 The refusal of the Tribunal to provide the Applicant with access to evidence relied upon by the Tribunal as requested by the Migration Agent."
In a letter dated 19 December 1995, Ms Le requested that the RRT provide her with copies of publications referred to in the First Adverse Matters Letter of 8 December 1995. In a letter dated 8 January 1996, the RRT advised Ms Le that it was not possible to provide her with copies of those publications, but that they were publicly available. On 14 January, Ms Le wrote to the RRT seeking access to one of the publications, "Black Hands of Beijing", or information as to where it was
available, advising that she had been unable to locate it in the public domain. In her final submissions on behalf of Mr Sun, Ms Le complained that she had still not had access to some of the publications relied on by the RRT. In particular, Ms Le said that "Black Hands of Beijing" was available only in the State Library of New South Wales, a non-borrowing institution, and that she had been hampered by being unable to consider it properly.
I do not consider that the Member's failure to provide copies of, or access to, material which is publicly available, albeit in non-borrowing libraries, is evidence of bias. The RRT's resources are not unlimited.
"6.19 The nature of the response by Ms Smidt to Marion Le's application that she disqualify herself on the grounds of reasonable apprehension of bias made during the hearing on 18 December 1995."
Mr Sun complains that Ms Le was repeatedly interrupted while the application was made. Ms Le also made this complaint in a letter to the Tribunal dated 14 January 1996:
"The tape of that hearing will reveal that the Presiding Member repeatedly interrupted my submission in an aggressive and argumentative fashion. I was taken aback by the Presiding Member's response and did not finish outlining the grounds of that application. Mr Sun, in his chronically depressed state, has believed for some time that Tribunal is actually biased against him. Having regard to the sorry history of this matter I have now come reluctantly to the view that his belief is justified. The various matters in the Tribunal's Letter which are here addressed but in
particular the matters referred to in paragraph 2 (when regard is had to the delay of the Tribunal in responding to my letter of 19 December) have in no small way led to the crystallisation of my view."
The transcript and tape of the hearing reveal that Ms Le's application that the Member disqualify herself took the form of an exchange between Ms Le and the Member, rather than uninterrupted submissions. The Member sounded at times somewhat taken aback by the submissions made by Ms Le, and at other times somewhat exasperated. It is possible to think, with the benefit of hindsight, that a better course may have been for the Member to interrupt less than she did. At no stage, however, was she aggressive or argumentative towards Ms Le. On the contrary, she was courteous throughout, and allowed Ms Le ample opportunity to make her submissions. The Member attempted to explain her role of testing, in order to satisfy herself about, Mr Sun's claims. I do not find evidence of bias in the Member's reaction to the request that she disqualify herself.
4.4 Other matters relied on as evidence of actual bias
4.4.1 Disingenuous correspondence
Mr Sun submits that correspondence between the RRT and his representatives indicates that the Member was biased against him. First, Mr Sun submits that the RRT's letters dated 5 October and 3 November 1995 indicated that a favourable decision on the papers might be made, while the Member had in fact already discarded that possibility. In support, Mr Sun
points to investigations carried out by the RRT which must have been for the purpose of questioning him at a hearing. (The same issue was raised in para 6.6 (a) of Mr Sun's application for an order for review - see above.) Mr Sun also relies on the facts that the advice from the Department's Document Examination Unit that the photographs and negatives were genuine did not lead to a cancellation of the hearing, and that the matters raised in the First Adverse Matters Letter were ultimately determined adversely to him.
Secondly, Mr Sun submits that the RRT's failure to inform Ms Le in its letter dated 13 March 1996 that the Member had cancelled the investigation relating to the occupants of 159 Hai Zhu Road is evidence of bias on her part. In a letter dated 28 February, the RRT advised Ms Le that the RRT had not previously requested an investigation as to the occupants of 159 Hai Zhu Road because, even if Mr Sun's parents did reside there, this would not necessarily indicate that the Chinese authorities had lied. Mr Sun submits that this statement is "disingenuous" because the Member realised the broader significance of the issue. According to the submission, a positive outcome to the inquiry would "completely establish" Mr Sun's identity.
The Minister submits that Mr Sun's submission that the Member was biased because she prepared for a possible hearing before making and communicating a formal decision that a hearing was necessary, is without substance. I accept this submission
(see also my reasons for rejecting particular 6.6 (a) earlier).
Although the Document Examination Unit found that the photographs and negatives were genuine, its report gave rise to serious questions as to whether Mr Sun was the photographer. The Member wished to question him about the photographic equipment used. The fact that she did not cancel the hearing after receiving the Unit's report does not indicate bias. The fact that the matters raised in the First Adverse Matters Letter were subsequently determined adversely to Mr Sun does not show bias either.
In my opinion, the RRT's failure to advise Ms Le of the Member's decision to cancel the request that DFAT investigate whether Mr Sun's parents lived at 159 Hai Zhu Road is not evidence of bias. While the RRT had acknowledged that a positive outcome to the inquiry could help in establishing Mr Sun's credibility, the RRT's letter of 28 February 1996 to Ms Le indicated that the Member considered that the chief or only purpose of the inquiry was to determine whether the Chinese authorities had lied in stating that "the name and address does not exist". Once it was established that the address that Mr Sun had provided to the Chinese authorities was incomplete, the Member concluded that they had not lied and that there was no need to investigate further. The Member appears to have assumed that it would be obvious to Ms Le that the investigation would not be pursued in the light of the
information about the street numbers. It is, perhaps, unfortunate that the Member's position was not spelled out more precisely in the letter dated 13 March 1996, but the omission is not evidence of bias.
Mr Sun's submission that the Member realised that if his parents were found to be living at 159 Hai Zhu Road his identity would be "completely established", is simply wrong. The Member had acknowledged that this would "help in establishing [Mr Sun's] credibility"; in other words, it would indicate that Mr Sun was telling the truth about his parents' address. At no stage did the Member indicate that it would also follow that she would accept that Mr Sun was a person who had participated in the 1989 pro-democracy movement in Beijing and subsequently fled in hiding to Foshan.
4.4.2 Tone of the Reasons for Decision
Mr Sun says that it may be inferred from the fact that the Member's Reasons for Decision contain some sixty adverse remarks about him compared to two favourable remarks, that she was biased against him. However, the Minister has identified, correctly in my view, a further thirty remarks favourable, or arguably favourable, to Mr Sun.
It is unnecessary to consider all of the passages relied upon by Mr Sun and the Minister respectively. The adverse remarks do not support an inference that the Member was biased; rather, they express her rejection of Mr Sun's claims. I will
not repeat the discussion above in relation to the allegedly extreme terms in which the Member's findings were expressed.
4.5 Conclusions on actual bias
In my opinion, actual bias may be established on an overall view of relevant factors, although it would not be established by any of them singly. I have considered all of the matters referred to by Mr Sun as a whole, as well as individually. Viewed as a whole, as well as individually, they do not establish actual bias, in my view.
The Member decided to conduct a de novo review. In my opinion she was entitled so to decide. Like Mr Fordham, she had doubts about Mr Sun's claims. She sought to test them. Ms Le appears to have viewed both the decision and the testing by the Member as evidence of bias on her part. But it seems that at the foundation of the charge is the fact that Mr Sun was not to offer any explanation, elaboration or clarification. Short of abdicating her responsibility and finding that Mr Sun was a refugee on the basis of sympathy, once the Member had decided to conduct a review de novo and to explore Mr Sun's claims, she could follow no course substantially different from that which she took.
I have listened to the tape recording of the hearing on 18 December 1995. While there were occasions when the Member interrupted Ms Le, this was nothing more than part of an ordinary exchange. Of course, both the Member and Ms Le had
to work without the benefit of any meaningful participation in the hearing by Mr Sun.
Mr Sun has not established that the Smidt Decision was affected by actual bias. Accordingly, his application fails in so far as it is founded on para 476 (1) (f) of the Act.
Ground 5."that there was no evidence or other material to justify the making of the decision": para 476 (1) (g) of the Act (para 7 of amended application for an order of review).
Sub-section 476 (4) of the Act provides:
"(4)The ground specified in paragraph (1) (g) is not to be taken to have been made out unless:
(a) the person who mae the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
According to Mr Sun's amended application,
"There was no evidence or other material to justify the making of the Decision in that the decision was based on the existence of a particular fact, and that fact did not exist."
No independent submissions were directed to establishing that the Smidt Decision was based on a particular fact which did not exist. Accordingly, it is unnecessary for me to consider this ground. However, I note my view that there was material before the Member to justify the making of the decision that she made.
CONCLUSION
Mr Sun is unsuccessful on each ground of his amended application for review. There will be an order that his application be dismissed with costs.
These Reasons for Judgment are not given in proceeding NG 443 of 1995. That proceeding remains to be disposed of. The Minister submitted that I should dispose of it and Mr Sun submitted that I should not do so. Either party is at liberty to have it listed by arrangement with the Associate to Beaumont J or my Associate, at an appropriate time, for further argument on this question in the light of the foregoing reasons.
I certify that this and the preceding 183 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated: 6 May 1997
Heard: 3, 4, 5 June, 2 August 1996
Last written
submission: 12 August 1996
Place: Sydney
Decision: 6 May 1997
Appearances: Mr D F Rofe QC with Mr M J Lawler of counsel instructed by Jackson Smith appeared for the applicant.
Mr M H Tobias QC with Mr N J Williams of counsel instructed by The Australian Government Solicitor appeared for the respondent.
