FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugee application - Challenge to decision of Refugee Review Tribunal - Claim of well-founded fear of persecution on basis of political opinion - Chinese national who claimed to have participated in pro-democracy demonstrations in Beijing in 1989 while a student at the Peoples’ University, Beijing - Two previous Tribunal decisions - Whether Tribunal erred in hearing third case de novo - Finding by Tribunal that appellant was not in Beijing in 1989 - Finding based on incorrect information as to university entrance qualification requirements - Failure of Tribunal to check information supplied by appellant and to seek readily available information - Whether the Tribunal failed to provide a fair hearing and substantial justice - Whether the Tribunal erred in law - Whether Tribunal member was affected by actual bias - Possibility of more favourable Ministerial decision.

 

 

 

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 followed.

Migration Act 1958 ss 416, 417, 420 and 476.

 

 

 

NG398 of 1997

 

SUN ZHAN QUI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

 

JUDGES:       WILCOX,  BURCHETT and NORTH JJ

PLACE:          SYDNEY

DATE:            23 DECEMBER 1997          

 

IN THE FEDERAL COURT OF AUSTRALIA  )

NEW SOUTH WALES DISTRICT REGISTRY )  NG398 of 1997

 

ON APPEAL FROM  A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

 

BETWEEN:               SUN ZHAN QUI

                                    Appellant

 

AND:                          MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                                    Respondent

 

JUDGES:                   WILCOX,  BURCHETT and NORTH JJ

PLACE:                      SYDNEY

DATE:                        23 DECEMBER 1997                      

 

 

THE COURT ORDERS THAT:

 

1.         The orders made by Lindgren J on 6 May 1997 be set aside and, in lieu thereof, it be ordered that:

            (a)        the application for review be upheld;

            (b)        the decision of the Refugee Review Tribunal dated 1 April 1996 be set aside;

            (c)        the application of the appellant, Sun Zhan Qui, for grant of refugee status be remitted to the Refugee Review Tribunal for further hearing and determination according to law; and

            (d)        the respondent, the Minister for Immigration and Ethnic Afairs, pay to the said appellant his costs of the application; and

2.         The respondent pay to the appellant his costs of the appeal.

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 )  NG398 of 1997

 

ON APPEAL FROM  A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

 

BETWEEN:               SUN ZHAN QUI

                                    Appellant

 

AND:                          MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                                    Respondent

 

JUDGES:                   WILCOX,  BURCHETT and NORTH JJ

PLACE:                      SYDNEY

DATE:                        23 DECEMBER 1997

REASONS FOR JUDGMENT

 

WILCOX J:  This is an appeal against a decision of a Judge of the Court (Lindgren J) dismissing an application by the appellant, Sun Zhan Qui, for review of a decision of the Refugee Review Tribunal.   The Tribunal rejected his claim for recognition as a refugee pursuant to the Convention Relating to the Status of Refugees of 28 July 1951, as amended on 31 January 1967.  The respondent to the appeal is the Minister for Immigration and Ethnic Affairs (“the Minister”).

The case is a disturbing one, both in relation to its particular facts and for what it says about the current Australian system of reviewing refugee decisions.  The Tribunal decision under present challenge is the third decision on Mr Sun’s case made by the Refugee Review Tribunal and is said to be affected by actual bias.

The appellant’s arrival in Australia

The appellant is a Chinese national.  He arrived in Australia at Cairns on 16 December 1993, having travelled on an Air Niugini flight from Port Moresby.  He had no passport or other travel documents but carried a note reading “I am from China.  I have to seek political asylum in Australia.  Help me please”.  Mr Sun was interviewed by David Yeomans, a senior inspector of the Department of Immigration and Ethnic Affairs (“the Department”).  The content of that interview and Mr Yeomans’ subsequent actions are set out in a report he prepared that day:

 

            “Pax interviewed.  Pax claims to have destroyed and disposed of his travel doc (Chinese passport) in the transit lounge, Port Moresby a/p prior to boarding his flight - flushed down toilet.  claims passport did not contain visa for A/a.  Destroyed and flushed boarding pass after boarding aircraft.  Claims lack of visa detected by airline check-in officer, however, after listening to pax’s story, the officer was ‘sympathetic to his plight’ and assisted in his boarding the aircraft.  This claim is being investigated by local Air Nuigini (sic) Manager.

 

            Pax claims his correct name to be Sun Zhan-Qui and correct dob to be 23.08.1971.  For the past four years pax has been using the name Sun Jiang (dob 23.08.71) to avoid detection.  Claims passport was in name Sun Jiang.  Airline booking (Air Nuigini) in name Sun Mr J.

 

            BACKGROUND

 

            Pax fears reprisal for his participation in the 1989 ‘student democracy movement’.  Claims to have been a student of economics at the uni of China in Beijing in 1989 and on the day of the 04 June massacre at Tiananmen Square marched with his class - claims to have been the class march organiser.  Claims 2 days after the massacre he escaped Beijing and travelled by train to southern China where he lived and worked for three years.  He assumed the name of Sun Jiang to avoid detection.  He worked in a toy factory in Foshang, Guantong prov.  His only family (parents) live in Guangchou city, some two hours drive from Foshang.  Claims did not return to live with parents for fear of being traced.  Kept in contact with them through a friend.

 

            In early 1993 pax claims he illegally secured a Chinese passport through a visiting Hong Kong man (name not known) in name of Sun Jiang - $HK20,000. Passport contained a 3 mth PNG visit visa.  In Apr 3 pax travelled to Hong Kong then flew (Air Nuigini) to Port Moresby, PNG.  Befriended a Chinese businessman in PM whom he stayed with until his journey to Australia.  Pax claims decided to continue on to A/a after hearing of the A/a government’s recent decision to grant pre-20 June 1989 Chinese PEPAE.  Believed this showed the A/a/ govt to be compassionate.

 

            Pax has limited baggage - two carry bags (mainly clothes and books).  Baggage search conducted by customs.  Nothing found which identified pax.  In possess of a number of photographs (approx 20) of crowds of Chinese, army tanks, and graphic photos of dead and bleeding bodies.  Pax claims the photos were taken by himself at Tiananmen Square.

 

            No record visa issue or previous entry to A/a under either name.  In view of lack of identification documentation and legal authority or right to enter A/a, entry refused.  Ques of pax’s claims to political asylum to be assessed separately.  Placed in s89 custody at Cairns watchhouse.  Transfer to Villawood detention centre, Sydney to be arranged soonest.

 

            Infringement notice served on carrier (Air Nuigini).”

 

As I understand the position, the infringement notice referred to in the last line of this report concerned the carrier’s action in apparently transporting Mr Sun to Australia without any travel document.

On the day of the interview, Mr Yeomans obtained from the Papua New Guinea authorities a copy of the Departure Card completed by Mr Sun on leaving Port Moresby.  It showed the name “Jugi Sun”, “Jugi” being written in the line marked “Family Name” and “Sun” in the line marked “Given names”.

On the following day, 17 December, the Traffic Systems Manager of Air Niugini responded to the infringement notice by writing a letter to an officer of the Department in these terms:

 

            “This passenger checked in normally and passed through Immigration Controls.  (See PNG Immigration Card). 

            This, of course, indicated that the [sic] had a Passport in his possession and a PNG Visa. 

 

            The Check in Agent was interviewed, and is mystified as to why the Passenger claimed that he (the Agent) had allowed the Passenger through ‘out of sympathy’.

 

            I find it unbelievable that this could have been the case, and I believe the Agent did not do this, as based on his past record, he is tough on Visas into Australia.

 

            I attach an example where this Agent (Number 754) refused a passenger travelling as a Medical case with a Fractured leg, on the PX3060 on the 16th December, because their Transit time was FIVE minutes over that permitted.  (See attached passenger record).

 

            In addition, I attach another passenger, deleted from the PX060/15DEC93, by the same Agent, for the same reason - No Visa.

 

            It is highly unlikely that he would allow a Chinese Refugee to board our aircraft.

 

            As you can see from the attached Statutory Declaration, the Agent has stated that there was not only an Australian Visa in the Passport, but a New Zealand one too.  His journey was to have taken him to NZ after 14 days.

 

            If the Passport was forged, then it was highly likely that it was a forged visa as well.

 

            This man lied to you from the start, and there would seem to be no substance to his stories.  He has everything to gain by lying, and the Check in Agent would have everything to lose by acting in the manner described.

 

            I find no indication that there is any substance in Mr. Sun’s story, and ask that unless you have any evidence to the contrary, to withdraw the Infringement notice.”

 

The statutory declaration referred to in the letter does not appear in the appeal papers.  Nor, it seems, was it among the documents considered by any of the Refugee Review Tribunal members who later reviewed Mr Sun’s case.

Mr Sun was transported to Villawood detention centre in Sydney.  On 23 December he applied for recognition of his status as a refugee.  The ground of his application was that he had a well-founded fear of being persecuted in China for reasons of political opinion.  Specifically, his fear was said to arise 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 24 January 1994 Mr Sun was interviewed, through an interpreter, in connection with his application for refugee status.  In this interview he said he was a student at the People’s University of China in Beijing from September 1988 to June 1989, taking the first year of a four year course for the degree of Bachelor of Economics.  He was asked whether he sat for the national entrance examination to enter the university, and his score.  He replied “Yes.  819”.  The interviewer asked Mr Sun to “give me a run down of what exactly you did in 1989” in connection with the student pro-democracy movement.  Mr Sun then referred to events on 18 and 19 April,  27 April, 10 May and 4 June 1989.  In relation to the last date, he said:

            “On 4/6/89 I was at Tiananmen Square with approx. 1000 students we retreated 6 blocks way along Chang An Street as tanks rolled along and threatened us.  When the smoke bombs cleared up we went back to the scene and some of my colleagues were killed.  I was a witness and took many photos.”

 

The interview went on to deal with Mr Sun’s subsequent movements and his reason for fearing persecution if returned to China.

On 11 February 1994 a delegate of the Minister decided Mr Sun was not a refugee.  Five days later, Mr Sun filed an application for review of that decision by the Refugee Review Tribunal.

The Fordham Tribunal decision

For the purpose of considering Mr Sun’s application for review, the Tribunal was constituted by Roger Fordham.  Mr Fordham conducted a hearing at which Mr Sun was represented by a solicitor.  Mr Sun gave evidence through an interpreter.  On 14 May 1994 Mr Fordham handed down a decision affirming the decision of the delegate that Mr Sun was not a refugee under the Convention.

In his reasons for decision, Mr Fordham said there were “many aspects of (Mr Sun’s) account of his departure from the PRC (the People’s Republic of China), his transit through Hong Kong and New Guinea that are implausible”.  He was not prepared to accept that a check in officer would allow a passenger to board an aircraft for Australia “in full knowledge of the lack of a visa and knowing the consequences for him personally”.  He thought Mr Sun’s account of his time in Port Moresby was “vague and without detail”.  He went on:

            “The Tribunal concludes that this part of the Applicant’s statement is either fabricated or given in such a way as to deliberately conceal details.  The Tribunal does not attempt to determine why the Applicant’s account of his journey from Hong Kong, through Port Moresby to Australia was fabricated.  At one point the Applicant openly stated that he did not want to provide the name of his benefactor in Boroko, New Guinea because he did not wish to implicate him.  The Tribunal accepts this and equally accepts that the Applicant may have reasons to have fabricated parts of this account which are equally well-intentioned.

 

            However, this aside, none of the material in this part of his account is Convention-related nor does it have any relevance to his claim to a well-founded fear of persecution for a Convention reason.”

 

Mr Fordham went on to observe that “lack of credibility in one section of the Applicant’s claims should not bias the Tribunal against all other claims” and to accept a specific submission made to him that any lack of credibility in relation to Mr Sun’s mode of departure from China “does not detract from his credibility on those earlier events, but may and should be explained in some other way”.  He then made a finding that has subsequently assumed some importance:

 

            “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.”

 

After referring to the issues that need to be addressed in considering a claim of refugee status, Mr Fordham said:

 

            “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.  He has also stated that he fled Beijing immediately afterwards and went into hiding in Foshan.

 

            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, as his representative pointed out in his submission, 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.”  (Emphasis added)

Mr Fordham then considered whether Mr Sun’s fear of persecution was well-founded.  He determined it was not; his reasons being Mr Sun’s relatively minor role in the pro-democracy movement and information as to the current position within China obtained from the Department of Foreign Affairs and Trade (“DFAT”) and the United States Department of State (collectively “country reports”).  In the course of this consideration, Mr Fordham indicated his acceptance that Mr Sun “carried news of proposed rallies and demonstrations to his class of thirty students and ... encouraged and went together with them on two or three occasions”.  Mr Fordham went on to discuss the effect of Mr Sun’s subsequent activities at Foshan.

            “He claims that he and friends met to discuss political matters and that he pasted articles of a political nature from magazines for the public to see.  He makes no claim to having been discovered doing this nor does he claim he was ever investigated for having done so.  The Tribunal concludes these articles could be readily obtained in his area in the same way he obtained them and thus [as] the general information in them [was] already known this action would not give him any real significance.  Further there is no evidence to suggest that the authorities were aware of his involvement in this activity.  The Tribunal finds that the risk of persecution from this action is indeed remote and insubstantial.”

Referring to Mr Sun’s claim that his parents had been questioned about his whereabouts, Mr Fordham said this did not, of itself, indicate a chance of persecution:

 

            “It does indicate an infringement of the family’s right to privacy but the Tribunal concludes this is an example of the general monitoring activities of the Chinese authorities rather than that he faces persecution for his involvement in the prodemocracy activities of 1989.  It is a fact that he has been absent and unable to be located for some considerable period.  It is accepted that the authorities may wish to question him concerning his departure from Beijing but, as has already been stated the Tribunal does not accept that his actions at that time provide him with grounds for a well-founded fear of persecution even if the authorities were aware of them.”

 

Mr Fordham said Mr Sun “may face questioning and some action for his illegal departure from the PRC” but he found “this would not be convention-related as it is an offence to illegally depart from the PRC”.  His conclusion was expressed in these words:

 

            “The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons.  However, having carefully considered the 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.”

 

 

The passport application

In his Reasons for Decision the primary Judge recounted what happened after Mr Fordham’s decision.  His account is not challenged, so I adopt it:

 

            “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 LI 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.”

 

 

The Ransome Tribunal decision

Mr Sun applied for review of the 24 November decision.  For the purpose of that application, the Tribunal was constituted by Kay Ransome.  At a hearing on 1 May 1995, Mr Sun was represented by a migration agent, Marion Le.  Once again, he gave evidence.  On 24 May 1995 Ms Ransome announced a decision that Mr Sun was not a refugee and affirmed the delegate’s decision of 24 November 1994 not to grant him a protection visa.  After referring to the Tribunal’s earlier decision and the circumstances surrounding the passport application, Ms Ransome expressed this conclusion:

 

            “The Tribunal is not satisfied on the material before it that the applicant has been refused a passport by the Chinese authorities.  It is clear from the departmental file that before considering whether a passport will be issued to the applicant, the Chinese Consulate requires further information from the applicant in order to verify his identity.  The applicant states that he has provided all of the information which he can provide in order that his application for a passport be processed.  It is clear from the departmental records that that is not the case.  Indeed, a departmental minute contained on the file details the information required.

 

            A further indication that the matter is not finalised as far as the Chinese Consulate is concerned is that neither the applicant nor the department has received any notification from the Consulate that a passport has been refused.

 

            The applicant’s adviser has stated that by refusing to issue the applicant a passport the Chinese authorities have effectively denied him protection.  She also states that if he were to return to China the applicant would be interrogated and persecuted.  This second statement seems to relate to the matters covered in the applicant’s first application which, as stated above, are not before this Tribunal for consideration.  As to the first statement, the Tribunal can only reiterate that on the facts as presented to it, there is no indication that the applicant has been refused a passport.

 

            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 earlier Federal Court proceeding

 

On 22 June 1995 Mr Sun filed an application in this Court for review of both Tribunal decisions.  In relation to Mr Fordham’s decision, review was sought pursuant to the Administrative Decisions (Judicial Review) Act 1977.  The application was out of time but Hill J extended time pursuant to s 11(1)(c) of that Act.  In relation to Ms Ransome’s decision, the application was made pursuant to s 476 of the Migration Act 1958.  That section permits review of decisions of the Refugee Review Tribunal (among other bodies) on any one or more of seven specified grounds, one of which is “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”:   see s 476(1)(e).

The two applications came before Beaumont J for hearing on 23 August 1995.  The Minister accepted that Ms Ransome had erred in law and the parties joined in asking Beaumont J to set aside her decision and remit “the matter” to the Tribunal “for fresh hearing in accordance with law”.  The question then arose as to what action should be taken in relation to Mr Fordham’s decision.  Beaumont J suggested the application for review of that decision might stand over pending the outcome of a fresh hearing of the remitted matter, but both parties opposed this because of the terms of s 416 of the Migration Act.  That section reads:

            “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.”

 

Presumably the concern was that the new Tribunal might adopt Mr Fordham’s decision and thus infect a new decision with any error inherent in the earlier.

Because of s 416, Beaumont J agreed to hear the application to review the Fordham decision.  However, he suggested only one question should be dealt with at that stage:

            “Whether having regard to the material before the Tribunal the first decision of the Tribunal is so unreasonable that no reasonable person could have made it?”

 

This is a ground of review under the Administrative Decisions (Judicial Review) Act (see s 5(1)(e) and s 5(2)(g)), but not under the Migration Act  (see s 476(2)(b)). 

The parties accepted the suggestion of  Beaumont J and his Honour made an order for the determination of that separate question.  After hearing further argument, Beaumont J reserved judgment.   A few days later, on 29 August 1995, he delivered Reasons for Judgment in which he referred to the material that had been before Mr Fordham, Mr Fordham’s decision and the relevant case law.  His Honour observed that, “(b)y its nature, it is usually difficult to make out a case of ‘manifest unreasonableness’ on the part of an administrative decision maker”.  However, he said, “whilst it is not appropriate that I now express a final view on the question, the applicant has nonetheless demonstrated at least that it is arguable that the Tribunal’s decision was manifestly unreasonable”.  He set out reasons for this view.

Beaumont J explained why he thought it inappropriate to express a final view about unreasonableness.  But for s 416, he said, it would have been inappropriate for the Court, having already remitted the matter to the Tribunal, “to have embarked upon the present hearing”.  However, s 416 created a problem.  Notwithstanding this, his Honour said:

 

            “... 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.”

 

In the result, Beaumont J did not give a final answer to the separate question.

The Smidt Tribunal:  hearing de novo

On the day following Beaumont J’s decision, Walsh James, the solicitors acting for Mr Sun, wrote to the Deputy Registrar of the Refugee Review Tribunal seeking an expedited rehearing of Mr Sun’s second application.  They stated their client “is presently suffering from acute depression and post traumatic stress syndrome” and enclosed a report from Dr Bruce Stevens, a clinical psychologist, dated 7 August 1995.  The report was based on a three hour consultation conducted that day in which Dr Stevens questioned Mr Sun and subjected him to various tests.  Dr Stevens reported that, initially, Mr Sun “was a little nervous and appeared to be emotionally flat.  At times he was close to tears.  I thought that he was genuine and direct in his replies”.

The report set out some personal information and recounted statements made by Mr Sun concerning his participation in the pro-democracy movement.  This included an account of events at Tiananmen Square on 4 June 1989 where Mr Sun claimed to have witnessed tank attacks and the Army shooting at students, and to have taken photographs that he showed Dr Stevens.   Reference was also made to subsequent events.

Dr Stevens expressed the opinion that Mr Sun was suffering from chronic post traumatic stress disorder.  He explained that the “essential feature” of this condition “is the development of characteristic symptoms following exposure to an extreme traumatic stressor”.  He gave examples of the type of experience that might trigger the disorder including experiencing or witnessing military combat or violent personal assault, or seeing a violent death.  He said:

 

            “Symptoms usually begin within the first three months after the trauma, although there may be a delay of months even years before symptoms appear.  Duration of the symptoms varies, with complete recovery occurring within three months in approximately half of the cases, with many others having persisting symptoms lasting for longer than 12 months after the trauma.”

 

Dr Stevens set out the diagnostic criteria he had used in determining that Mr Sun had a “severe condition” of post traumatic stress disorder.  He related some of these criteria directly to the detail of statements made by Mr Sun about events in Beijing in 1989, statements that Dr Stevens obviously accepted as genuine.

Dr Stevens had submitted Mr Sun to a test called “Basic Personality Inventory” that consists of a 240 item questionnaire.  Dr Stevens reported:

 

            “He scored in the clinical range of >70 for the scales of Hypochondriasis, Depression, Persecutory Ideas, Anxiety, Thinking Disorder, Social Introversion, and Deviation.  The profile is that of a very distressed person.  Although he scored highly on two scales associated with psychosis, I think at the level of these scales it is more likely associated with the trauma because the Depression and Anxiety scales are very high.  The Depression scale was the highest, with a score in the highest range of very severe depression.  He is psychologically isolated, with a high score on Social Introversion which indicates that he is more vulnerable to stress because he will tend to try to manage on his own rather than seek support from others.  His Self Depreciation score was lower than the Depression, although on the margin of the clinical range, it may be indicate less chronic vulnerability to depression and perhaps a depressive condition relating to his present circumstances.

 

            Aaron Beck, MD, has designed the Beck Depression Inventory with 21 questions.  These are weighted and scored from 0-3.  The results are scored:

           

             1-10 Normal range

            11-16 Mild mood disturbance

            17-20 Borderline condition

            21-30 Moderate depression

            31-40 Severe depression

            >40 Extreme Depression

 

            Mr Sun scored 48 which is in the highest range.  He also meets the criteria for a Major Depressive Episode with the following symptoms present for the last two weeks, and possibly a lot longer:   depressed mood, diminished interest and pleasure in normal activities, weight gain in the last couple of years, insomnia, fatigue, feelings of worthlessness, diminished ability to concentrate, recurrent thoughts about death and suicidal ideation.  He meets all the criteria though the weight gain may be related to better eating at the camp and not a depressed mood.  He still meets 8 of the 9 when only 5 is necessary for the diagnosis.”

 

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 full recovery.”

 

So far as the evidence discloses, Dr Stevens’ views have never been challenged.

Following Walsh James’ letter, the remitted review was allocated to a Tribunal member, Roslyn Smidt.  Ms Smidt decided against using s 416 of the Act.  She thought the better course would be to consider de novo Mr Sun’s claim for refugee status.  In argument before us, Mr Michael Lawler,  counsel for Mr Sun, criticised this decision.  He submitted that, pursuant to s 416, Ms Smidt should have accepted Mr Fordham’s findings concerning Mr Sun’s activities in China, and that Mr Sun had a fear of persecution on account of his political opinion, and confined herself to a re-examination of the question whether that fear was well-founded.

It is convenient to say immediately that I reject this argument.  Ms Smidt ought not be criticised for deciding to consider the case de novo. 

There is a question whether s 416 may be used in the piecemeal fashion suggested by counsel.  That question turns on the meaning of the word “decision” in par (d) of the section.  The word is not defined in the Act.  If “decision” in s 416(d) refers only to the final decision to grant or refuse recognition of a person’s claim of refugee status, it is obviously not competent for a subsequent Tribunal to have regard to, and take to be correct, only a particular factual finding made on the way to reaching that decision. 

The use of “decision” in s 417 perhaps supports this suggested construction.  Section 417(1) empowers the Minister to “substitute for a decision of the Tribunal ... another decision, being a decision that is more favourable to the applicant”.  The “decision” referred to in this subsection would appear to be the final decision on the application, not a finding of fact.  On the other hand, the word “decision” in s 416(d) is linked to the discretion given to the Tribunal by s 416(c) not “to consider any information considered” in any earlier application.  There is much to be said for the view that par (d) is speaking of the earlier Tribunal’s “decision” about that information; that is, the Tribunal’s relevant finding of fact.

I do not find it necessary to reach a view about the availability of s 416 to Ms Smidt.  Even if it was open to her to take the suggested course, she was not bound to do so.  Section 416 conferred a discretion; it did not impose any obligation.  Especially having regard to the remarks of Beaumont J, there was good reason for starting again.  How to conduct the de novo hearing, given Mr Sun’s psychological condition, was another question.

The Smidt Tribunal:  preliminaries

In the event, Ms Smidt conducted an oral hearing on 18 December 1995.  However, much work was done before that date.  It seems Ms Smidt decided to investigate whether Mr Sun was in fact a student in Beijing in 1989, as he had always claimed.  On 21 September 1995 she made an internal Research Request for information about the subjects in which an Economics student would need to enrol at the People’s University of China and “what particular requirements there are for students enrolling from other provinces”.  She explained in her memo:

            “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 enrollment elsewhere is possible ...”

 

The acronym “NOOSR” stands for the National Office of Overseas Skills Recognition, a unit of the Commonwealth Department of Employment, Education and Training.

On 4 October 1995 David Mackey, a Tribunal research officer, wrote to an officer of the Education Section of the Consulate of the People’s Republic of China in Sydney as follows:

 

            “I am seeking information regarding People’s University in Beijing.

 

Could you please forward a course outline for the economics degree and the entrance requirements necessary for admission to the university for a Chinese national.

 

I would also like to know if there are any special provisions or quotas for persons seeking admission to the People’s University from other provinces of China?”

 

On the same day Mr Mackey wrote to the university itself.  He sought the same information, but added an inquiry as to the existence of “any special requirements for graduates from other provinces, such as Guangdong”.

In early October, on Ms Smidt’s instruction, the Tribunal issued a summons requiring Ms Le to produce the negatives of the photographs Mr Sun was carrying when he entered Australia.  They were produced and, on 20 October 1995, referred by Paul Smith, a Tribunal officer assisting Ms Smidt, to the Document Examination Unit of the Department.   Some reliance is placed on the terms of Mr Smith’s letter, so I will set out the relevant part, emphasising a sentence highlighted in Mr Lawler’s submission to us.

 

            “The Tribunal has before it an applicant who claims to have participated in many of the demonstrations which were held in Beijing in April/June 1989 and to have been present in Tiananmen Square on the night of 3 June 1989.  He claims to have taken the enclosed photographs himself during that period.  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.”

Mr Lawler’s suggestion is that there was not yet anything before Ms Smidt to cast doubt on Mr Sun’s claim of participation in the Beijing demonstrations, a claim expressly accepted by Mr Fordham; this letter  therefore reveals actual bias.

On 14 November Patricia Moss, of the Document Examination Unit, reported on the three black and white photographs and six colour photographs forwarded to the Unit.  These photographs showed people engaging in a protest march, with flags and banners, bodies lying on the ground or across a bicycle and tanks.  The photographs included one of an apparently moving tank knocking down a barricade behind which were people.  In relation to all the photographs,  Ms Moss said “There are no half tone dots to indicate that the photographs were taken from a newspaper or magazine, nor is there any indication of a pixel based video image”.  She said the photographs had been taken at different times of the day, one at night.  Ms Moss thought some colour photographs had been taken “from an elevated position”, the others at street level.  She said of the colour photographs that the “varying fields of view displayed in the photographs indicate that the camera used probably had a zoom lens attached”.  Ms Moss was of the opinion that none of the photographs were reproductions from newspapers, magazines or video and all of them appeared to have been taken “at the various scenes”.  Ms Moss suggested “that the applicant be asked to describe the type of camera equipment used and the position from which the photographs were taken”.  She commented:

 

            “Although I have stated that the photographs are not reproductions, this does not indicate that the applicant was the photographer.  A subjective appraisal of the negatives and photographs indicate(s) that the photographer has had some experience, possibly in journalism.”

 

Mr Sun was subsequently asked about the camera used to take the photographs.  He was not asked about his experience as a photographer.

On 6 October 1995, at Ms Smidt’s request, Mr Smith wrote to the Onshore Refugee Processing Unit of the Department seeking a list of visitor visa applications issued at Port Moresby “to all Chinese, Taiwanese and Hong Kong male nationals in the two months prior to 16 December 1993”.  On 17 October Mr Smith was advised that this list “runs for approx. 88 pages”.  He passed this information to Ms Smidt.  She cancelled the request, presumably because of the length of the list.  Apparently nobody thought of  searching the 88 pages for specific names, such as that used on Mr Sun’s Papua New Guinea departure card, the name allegedly shown on his false passport (Sun Jiang) or his true name.  As the Department’s information was stored on a computer data base, a search could have been quickly and easily effected.  It will be recalled that, on 16 December 1993 in Cairns, Mr Yeomans had negatived the issue of a visa in the name of Sun Jiang or Sun Zhan Qui, apparently by undertaking a computer search against those two names. As was demonstrated by a search made after Ms Smidt’s decision, a specific name search made on her behalf would also have negatived the issue of a visa in favour of “Jugu Sun” or “Sun Jegu”, an issue Ms Smidt assumed in her decision.

Another matter raised in early October was whether Mr Sun would be obliged again to give evidence.  On 9 October Walsh James wrote to Mr Smith at the Tribunal enclosing an eight-page document entitled “Applicant’s Preliminary Submissions”.  This document dealt with two main matters.  The first was the alleged inability of the PRC Consulate to issue a passport to Mr Sun in 1994 because of lack of confirmation of his name and address.  Ms Ransome had recorded the Consulate said “the home address provided by the applicant does not exist”.  In relation to this, the submission pointed out the address given to the Consulate (as the address of Mr Sun’s parents) was 159 Hai Zhu Road, Guangzhou.  The submission said one of Mr Sun’s legal representatives was acting in an unrelated matter for a migration agent who had a contact in Guangzhou.  The contact had obtained a map of Guangzhou, which showed Hai Zhu Road, and had taken photographs of the building at 159 Hai Zhu Road.  One photograph showed a plaque beside a doorway with the name “Hai Zhu” in Chinese characters and the number 159.  The Chinese characters on the plaque matched those of the road on the map.  The submission proceeded:

 

            “The word ‘Hai’ means ‘Sea’.  The word ‘Zhu’ means ‘Pearl’.  Thus, ‘Hai Zhu Road’ translates in English as ‘Sea Pearl Road’.  The Chinese characters circled on the attachment C and appearing on the plaque in Photograph IV are the characters for Sea and Peal [sic], ie for Hai and Zhu.  The third character means ‘South’.  Hai Zhu Road, as can be seen from the map, is a main road and is sometimes broken into three parts (North, Middle and South) as shown on the map.  The street numbers run consecutively for the whole length of the street.  The map extract has been annotated to show the meaning of the Chinese symbols.

 

Hai Zhu road does exist ... Number 159 Hai Zhu Road does exist ...  The claim by the Chinese official that the address does not exist is false.  That false claim has led the Department and the RRT to wrongfully draw adverse conclusions about Mr Sun.” (Original emphasis)

 

After referring to other matters, the submission argued:

            “The only conclusion reasonably open to the Tribunal is that the Chinese Government was unwilling to permit Mr Sun to return, and that accordingly he is unable to return to his place of habitual residence.  On either view he is a refugee.”

 

In order to put the matter of the address in perspective, I mention that the address given to the Consulate lacked the word “South”.  So it would not have been immediately apparent to the Consulate which of the three parts (North, Middle or South) was intended.  This perhaps undermines the assertion in the submission that the claim of the Chinese official was false.  However, on the other side of the case, the point has been made that, by this date (almost six months before her decision) Ms Smidt had a complete address for Mr Sun’s parents; yet, without further inquiry, she was to proclaim herself “unable to determine his identity” and to use confusion about the address as “a clear implication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status”.

Another matter raised in Walsh James’ submission was the appropriate course to be taken.  The submission contained references to the judgment of Beaumont J and offered the view “that the Tribunal will need to do no more than consider the material attached to these preliminary submissions ... in order to be able to make a favourable decision on the papers pursuant to s 424(1)”.   Section 424(1) of the Migration Act provides:

“424(1)           If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decisions or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.”

 

In their covering letter of 9 October, Walsh James expanded on this matter.  They argued the real issue was the inferences that ought to be drawn in relation to Mr Sun’s claims, from the other evidence before, or available to, the Tribunal.  They went on;

            “It would be legally embarrassing and unnecessarily hazardous for a person in a precarious mental state for (sic - like) Mr Sun to be exposed yet again to an examination of the veracity of his story - a story that he has told consistently since he arrived in this country about two years ago.”

 

On 11 October Mr Smith responded to this letter.  Amongst other things, he indicated that “the Presiding Member (Ms Smidt) has also asked me to advise you that she will be conducting a full de novo review of Mr Sun’s case.”  The letter did not expressly deal with the question of Mr Sun giving evidence or his psychological condition.

On 29 October Ms Le wrote to Mr Smith, primarily in relation to the photographs.  But she also dealt with the question of Mr Sun’s further appearance to give evidence:

 

            “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 intentions in this regard?

 

The Tribunal has been provided with a report by Dr Bruce Stephens [sic] 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.

 

I would be pleased to receive notice of:

 

(a)     Any matters which the Tribunal may consider adverse to Mr Sun’s application so that we may comment on them, and

 

(b)     Any documents which the Tribunal identifies as relevant to a determination of Mr Sun’s application so that we may consider these.

 

                        I wish to have the opportunity of calling witnesses if the Tribunal decides that a favourable determination on the papers is not possible and a Hearing is offered Mr Sun.”

 

Mr Smith responded to this letter on 3 November confirming that “the Tribunal will be conducting a full de novo members review of Mr Sun’s case”.  The letter also 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.  You and your client will, of course, be given an opportunity to comment on any adverse material which may be taken into account when determining his application.  The Presiding Member will consider any request for witnesses to appear at a hearing to give evidence on Mr Sun’s behalf.”

 

This was not the end of discussion about Mr Sun’s attendance.  On 29 November Ms Le again wrote to Mr Smith confirming her earlier statements “regarding the fragility of Mr Sun’s psychological health”.  She said:

 

            “He is now on medication to relieve some of his stress but feels stress at the thought of having to attend another hearing.  He believes that he has nothing further to add to his case and believes that he may break down in another hearing.

 

            I would like to request the Tribunal member to give us details of the questions she would like to put to Mr Sun ie Would the Tribunal Member please identify the aspects of the case which are causing her difficulty in arriving at a decision and also any adverse material she may have before her.  This would assist me in my discussions with Mr Sun.

 

            Mr Sun is also wanting to know what the Tribunal’s reaction to the photographs provided has been - ie to the photographs he took in China and also to the photographs of his home address.

 

            I am conscious that the Tribunal Member has requested a Hearing because she believes she is unable to reach a favourable decision on the papers.  I hope that the aspects causing concern could be addressed by further paperwork given the state of Mr Sun’s mental health.

 

            I stress that I am anxious to co-operate with the Tribunal in every way to give my client maximum support.”

 

At one stage the proposed hearing date was 4 December but it was put back to 18 December.  On 8 December Mr Smith wrote a long letter to Ms Le.  It opened:

 

            “The Presiding Member has asked me to again invite Mr Sun to attend an oral hearing at the Tribunal as she has a number of concerns regarding the credibility of claims Mr Sun made to the Department and the Tribunal, as previously constituted, which she believes can best be addressed at an oral hearing of the Tribunal.

 

            Some of the evidence Mr Sun has provided regarding the events in which he participated in 1989 differs in a number of ways from accounts of the same events contained in publications available to the Tribunal.”

The letter went on to compare some statements made by Mr Sun concerning events between April and June 1989 with accounts of those same events in some published works.  It also dealt with other matters that had recently been discussed:

 

            “The Presiding Member would also like the opportunity to clarify other aspects of Mr Sun’s case.

 

            For example, she would also like to discuss his stay in New Guinea.  Mr Sun claims that he entered New Guinea using a passport issued in the name of Sun Jaing, born 23 August 1971 and remained in New Guinea from late April to 16 December 1993.  However, the departure card filled in by Mr Sun when he left New Guinea, indicates that he was using a passport in the name Jugu Sun, date of birth 1 October 1961 and that he spent only 3 weeks in New Guinea.

 

            The Presiding Member would like to discuss the photographs which Mr Sun provided to the Tribunal.  For example, she would like to know what kind of camera Mr Sun used to take these photographs and more about the circumstances in which the 4 June 1989 photographs were taken.

 

            The Presiding Member would also like to discuss the situation at the People’s University of China on the morning of 4 June 1989 and Mr Sun’s decision to leave Beijing and the group which he claims to have formed while working in Guangzhou.

 

            You have also asked for the Tribunal’s reaction to the photographs of a house in Guangzhou provided by Mr Sun.  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.  She also notes that [the] passport application form completed by Mr Sun and forwarded to the Chinese authorities contained only his name, date of birth, the names of his parents and details of his stay in New Guinea and Australia.  Mr Sun failed to answer questions asking for his addresses in China or details of his personal background, although some of these details were provided in an accompanying letter from the Department.

 

            For these and other reasons the Presiding Member would like Mr Sun to reconsider his decision to attend an oral hearing at the Tribunal.

 

            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.”

 

Notwithstanding these matters, Mr Sun determined he would not give evidence.  On 17 December he wrote (or, at least, signed) a long letter saying “I really do not want to talk about the past to this tribunal again”.  He gave a number of reasons.  I need not set them out; it is sufficient to say they indicate a lack of confidence in the open-mindedness of the Tribunal.  He appended a note dealing with two matters.  First, he said he filled in the departure card “just to make it look like a filled card not an empty card.  The information on the card are nothing to do with my real identification”.  Secondly, he identified the camera used to take the photographs as a Chinese made, Hong Mei camera.

The Smidt Tribunal:  the hearing

Mr Sun attended the hearing by Ms Smidt on 18 December, but he declined to answer any questions.  Ms Le produced Mr Sun’s letter and note and presented a 14 page submission, apparently prepared by her, dealing with the matters raised in Mr Smith’s letter of 8 December.  The submission included some personal observations about Mr Sun’s psychological health and attitude to the Tribunal.  She said:

 

“9.       One of the major contributing factors to Mr Sun’s present state of health is the perceived bias of the Tribunal against him.  The saga of the photographs and negatives was disturbing particularly when a subpoena was issued and no guarantee of return of the photographs/negatives was (initially) forthcoming.  Further, the apparent unwillingness of the Tribunal to seek out (or ask Mr Sun’s adviser) to seek out a map of Guangzhou and allow him to show where his parents’ home is located is, it appears to Mr Sun, now compounded by the fact that the current Member questions whether the very streets of Beijing he named exist.  This will be addressed later in the submission.  It is unfortunate that the Member did not check the Chinese characters/Mandarin/Cantonese transcriptions before questioning Mr Sun’s credibility again in this way.  Other issues of perceived bias will be addressed later in the submission.  On the face of the adverse material presented in the letter of 8 December, 1995, it certainly seems that the Tribunal has been highly selective and biased in its choice of material given that Mr Sun can only tell what he experienced and not access a library or other scholars to refute the secondary sources presented by the Tribunal.  I am aware, of course, that the Tribunal does have an obligation to put adverse material to the applicant even though Members have access to supporting material.  The dilemma for the adviser is whether the Member will access supporting material or not ...

 

10.       Legal advice offered to me is that were these Court proceedings the Member would be asked to disqualify herself.  Given that these are Tribunal Hearings operating under a different modus operandi I can only note the advice and place it on the record to protect myself and my client.”

 

The reference to the streets of Beijing arose out of a comment in Mr Smith’s letter of 8 December that Ms Smidt “could find nothing which resembled the street names mentioned by Mr Sun on the map of Beijing held in the Tribunal library, except for Chang An Boulevard”.  Apparently, the problem arose because of the difference between the Cantonese and Mandarin forms of the names.  The written submission was accompanied by a map on which Mr Sun had marked the points where he took the photographs.  Ms Smidt accepted this resolved the difficulty mentioned on 8 December.

The submission went on to refer to numerous published accounts of the events of April-June 1989 and to suggest some accounts contradicted aspects of accounts in publications relied on by Ms Smidt, but were consistent with Mr Sun’s version of events.  There were also submissions about the Chinese government’s attitude to participants in the pro-democracy movement.

Following the hearing, on the same day, Mr Smith faxed a letter to Ms Le informing her that Ms Smidt “will be making a decision on Mr Sun’s case on the basis of the evidence currently before the Tribunal and any other written evidence or submissions you wish to provide”.  They were to be provided by 3 January 1996.

This letter provoked a response from Ms Le inquiring whether all “adverse matters” had now been raised with Mr Sun either in the Tribunal’s letter of 8 December or at the previous day’s hearing.  Other problems were raised and a request was made for more time.  This request was granted.  On 22 December Mr Smith advised that Ms Smidt had indicated  “the deadline of Jan 3 is to be ignored, and that she will get back to you in due course, in regard to the submissions”.

On 8 January 1996 Mr Smith wrote a further letter to Ms Le.  He set out a number of matters about which Ms Smidt had concerns.  About the same time, apparently, Ms Smidt decided to seek further information about Chinese university national entrance examination scores.  On 10 January a Tribunal researcher wrote to the Chinese Consulate in Sydney asking for “the total score that was required in 1988” and also “the number of students who failed to return to the People’s University when it reopened after 1989”.  On the following day she also wrote to NOOSR asking “the total possible score which a student can obtain in the national examination for entrance to academic study in China”.

In response to Mr Smith’s letter of 8 January, Ms Le forwarded a lengthy letter dated 14 January.  The letter included several requests.   Request (a) was for a further extension of time.  Request (b) was that the Presiding Member exercise her statutory power to request that an investigation of the address 159 Hai Zhu Road be made by Departmental or DFAT representatives in Guangzhou, to ascertain whether Mr Sun’s parents still reside, or once resided, there. Request (c) was for the Tribunal to have the Secretary of the Department ask the Papua New Guinea passport control authorities about any record of “Sun Jiang” or “Jiang Sun” entering that country between 15 and 30 April 1993.  Request (e) was for a re-translation of the tape of part of the Fordham hearing, the contention being this would reveal inadequacies of interpretation that have “in no small way prejudiced the Tribunal’s perception of Mr Sun”.  On 5 February Mr Smith wrote to Ms Le stating Ms Smidt:

 

“has asked me to advise you that she will not be undertaking the investigations you have requested in (b) to (d)  of  your letter dated 14 January 1996 nor will she be arranging for a retranslation of a section of the taped hearing conducted by Mr Fordham.”

By letter dated 17 January 1996 an officer of the Consulate General of PRC in Sydney notified the Tribunal that the “national entrance examination for entry into tertiary study in China is divided into two types generally, one is for science and engineering and the another is for liberal arts”.  He went on “In 1995, the total score is 750 respectively for both types”.  He gave no information about earlier years.

On 1 February the Consulate General provided some further information:

 

“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.  As for the information on the number of the students who failed to return to the People’s University in Beijing, I am sorry that I could not provide any information about it because there is no such information in our office.”

The information contained in this letter was consistent with some information already forwarded to the Tribunal by Heather Gregory of NOOSR, in a letter dated 11 January 1996, but with a major qualification. Opening with a warning that “it is often difficult to obtain accurate information about bureaucratic processes in the PRC, and no guarantee can be given that the information is correct”, the letter relevantly said:

 

“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 Guangdong Province.”

 

Guangdong Province was, of course, the province in which Mr Sun claimed to have undertaken his secondary education and sat the National College Entrance Examination (“NCEE”).  Information about examination scores was being sought in order to test Mr Sun’s claim that he scored 819 marks in the 1988 NCEE, but nobody at the Tribunal enquired what Ms Gregory meant by “recently”.  Had the inquiry been made, it would have revealed that “recently” commenced in 1988, so Mr Sun could have scored 819 marks as he claimed.  But his perceived inability to have done so was the primary reason for Ms Smidt concluding, not only that he did not participate in the Beijing demonstrations, but he was not even a student at the People’s University in Beijing.

In February 1996 Ms Le forwarded to the Tribunal an 18 page document entitled with Mr Sun’s name and the words “First Submissions on behalf of applicant”.  It contained a paragraph dealing with bias:

 

“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.”

The submission argued that “the Tribunal is not permitted to re-enter upon a determination of the veracity of Mr Sun’s account of his activities in China”.   However, recognising Ms Smidt had indicated a contrary view, it went on to deal at length with those matters.

The Tribunal acknowledged this submission on 22 February.  On 23 February Ms Smidt reversed her earlier decision and issued an internal “Country Research Request” seeking information about two matters.  First, she set out the known facts, and claims made by Mr Sun, concerning his travel to Australia.  The request was in these terms:

 

            “Can you please contact the New Guinea Consulate or their Department of Immigration directly and see if they can provide any information on 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 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?

 

            Can you find out how long it would take to obtain this information.”

 

Second, Ms Smidt requested the research officer to “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”.

On 28 February the Papua New Guinea request was communicated to that country’s High Commission in Canberra by Tomas Boncales, a Tribunal research officer.  According to a later memorandum, the request was passed on to Port Moresby but there is no evidence of a response.  There is, however, a fax dated 13 March from Clare Booth, an officer of the Department in Canberra, to Mr Boncales in Sydney stating “we understand the tribunal member does not wish to pursue question number 2”; that is, the Papua New Guinea inquiry.  There is no evidence why Ms Smidt made this decision.

In relation to the other matter, there was apparently a telephone conversation between Ms Booth and Mr Boncales.  On 29 February Rocio Trapaga, Assistant Director of the Tribunal’s Research, Information and Documentation Branch, wrote a letter to DFAT to convey “the specific information that Ms Booth requires in relation to the Tribunal’s request for DFAT to check a certain house (and its occupants) in Guangzhou”.  Mr Trapaga acknowledged “that it would be up to DFAT to decide whether to conduct the check or not and the manner of  conducting it” but he specifically requested “that the Chinese authorities not be consulted regarding this matter”.  He also said:

 

            “the presiding Member specifically asked that the attached background information as well as the questions contained in it, should be sent to the post, as is, without any changes.”

 

The attached background information was lengthy.  In some detail it set out Mr Sun’s claims about his travel and activities in China and information about the earlier hearings.  In relation to the house at 159 Hai Zhu Road, the document said:

 

           “Mr Sun’s representatives subsequently arranged for someone to obtain a map of Guangzhou showing Hai Zhu Rd, Guangzhou.  The map indicates that the road is divided into three parts:  Hai Zhu South, Hai Zhu Middle and Hai Zhu North.  This person also took a picture of a house at 159 Hai Zhu South, which Mr Sun claims is where his parents live.  They argue that this proves that the Chinese officials in Australia have lied and are denying Mr Sun a passport for political reasons.  After earlier stating that Mr Sun has expressly asked them not to contact his parents because it is too dangerous, they have now requested that the Tribunal endeavour to ascertain whether his parents are still at this address or whether they lived there prior to April 1993.

 

Mr Sun has been in detention since his arrival in Australia.  His representative has signalled her intention of challenging any adverse decision in the Federal Court.

 

The presiding Member in this case is anxious to conduct the most thorough investigation possible into Mr Sun’s claims.

 

She would like the Australian Post in Guangdong to advise:

 

1)       Advise whether the numbers in Hai Zhu Street continue along the entire street or whether the three sections of the street (North, Middle and South) are numbered independently.

 

2)       Ascertain whether Mr Sun’s parents live at the address in question or lived there prior to early 1993.”

 

On 28 February Mr Smith faxed a letter to Ms Le informing her of Ms Smidt’s changed position in relation to the Papua New Guinea and Guangzhou inquiries.  He wrote:

 

           “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 PNG Consulate has been asked to ascertain whether any records are held indicating that Mr Sun entered New Guinea in late April 1993 or November/December of the same year.

 

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 an investigation as possible into Mr Sun’s case and has therefore asked DFAT to make these checks before making a decision on his case.

 

Both the PNG Consulate and DFAT have been advised of the urgency of this matter and it is hoped that the information requested is received promptly.”

On 1 March Ms Le responded to Mr Smith’s fax in this way:

 

“1.         I refer to your facsimile of 28 February 1996.  Given the Presiding Member’s present inclination, as set out in paragraph 3 of the facsimile, I do not see how conducting ‘as thorough an investigation as possible’ could alter the outcome.  In these circumstances I am surprised that the extensive delay in this matter should be further extended.  My client has been in detention waiting since August for a redetermination of his second refugee status application.  Very little of the period that has elapsed since August can be attributable to delay on the part of the Applicant.

 

2.            Requests for the investigation that are now to be conducted were first made about seven weeks ago.  By that time the Tribunal had already complained (when confronted with a request from Mr Sun for more time to make submissions) that the issues were well defined (see the Tribunal’s letter of 8 January 1996 - the 4th last paragraph).  At the conclusion of the hearing on 18 December 1995 the Presiding Member remarked upon her recognition that a speedy decision was required and would be delivered.  In the Tribunal’s letter of 18 December 1995 the Presiding Member set a deadline for submissions by Mr Sun of only 8 working days.

 

3.            I would remind the Tribunal that its statutory function requires it to investigate proactively.  An applicant typically cannot corroborate or verify his or her claims.  It is for the Tribunal to seek to test those claims if it harbours doubts as to their veracity.  Consistent with the United Nations Guidelines an applicant should be given the benefit of the doubt in respect of his or her claims and consistent with the statutory obligation to do substantive justice (s.420) the Tribunal should, with respect have been investigating these matters earlier.  It ought not, with respect, have been necessary for the Applicant to request such investigations.

 

4.            Yet again I remind the Tribunal that Mr Sun is chronically depressed.  His moods fluctuate wildly.  About month ago [sic] Mr Sun appeared deeply depressed to the point where suicide became a concern that I genuinely held.  If Justice Beaumont had not had court commitments I would have had my legal representatives approach him for decisive relief.  Mr Sun’s worst moods have improved marginally but he remains depressed and appears fragile.  There must be no further delays.  If the Tribunal cannot assure me that the enquiries will be conducted within days I propose to instruct my legal representatives to approach the Court for appropriate orders.

 

5.            I am confident that Justice Beaumont did not envisage the present situation when he adjourned the matter - particularly when regard is had to the contents of correspondence between us since the delivery of his Honour’s judgment.  Once again I object to the Tribunal entering upon a reconsideration of the truth of Mr Sun’s claims as to his activities in China ...

 

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.  [Original emphasis]

 

7.            I ask you for your urgent substantive response to the matters raised in this  letter.”

 

Section 420 of the Act is in these terms:

“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.”

 

 

On 13 March Ms Booth told Mr Boncales the Guangzhou Consulate had advised that “Hai Zhu Street, similar to many long streets in large Chinese cities, is divided into north, middle and south; and that each of the three sections is numbered independently”.   This was apparently regarded as new information.  On 13 March Mr Smith wrote a letter to Ms Le that commenced:

 

           “The presiding Member has asked me to advise you as follows.

 

The Australian Post in Guangzhou has advised the numbers in Hai Zhu Road do not run consecutively for the whole length of the road; each section is numbered separately.  This being the case it appears that the address given to the Chinese Consulate in Australia was incomplete.”

 

Apparently both Ms Smidt and Mr Smith overlooked that Mr Sun’s representatives had told them in October the address was 159 Hai Zhu South, and this was stated in the document that Ms Smidt had herself approved, which was forwarded by Mr Trapaga to DFAT as recently as 29 February.

Ms Booth’s communication seems to have terminated any attempt to confirm Mr Sun’s information about his parents’ address.  This is inexplicable.  Although she never communicated that perception to anyone acting on behalf of Mr Sun, Ms Smidt was later to realise that information about the parents’ address had a significance beyond the attitude of the Chinese authorities.  It offered the possibility of checking Mr Sun’s claims concerning his identity and his attendance at the People’s University of China in Beijing in 1988-1989, matters about which Ms Smidt was rightly concerned and in respect of which she made adverse findings.  Guangzhou is a large city in which Australian government officers are located.  It would have been a simple matter for one of them to call at the house, preferably armed with a photograph of the appellant, and inquire whether he was known there; and, if so, to obtain some information about his history.  There is no certainty a visit would have elicited useful information; but substantial fairness surely dictated an attempt be made.

 

Another issue was still alive.  In his letter to Ms Le of  13 March, Mr Smith said:

           “During his first interview with the Department, Mr Sun stated that he had scored 819 points in his university entrance examinations in 1988.  According to information from the Chinese Consulate the national examination for entry to tertiary institutions in 1988 was divided into two, one for those studying science and engineering where a total mark of 710 was achievable, the other for liberal arts, where the total mark achievable was 840.  This raises questions about Mr Sun’s claim that he entered the People’s University of China in 1988.

 

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.  Should you have any problem meeting this deadline, please contact Paul Smith.”

 

Ms Le responded on 24 March:

          

           “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 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.”

 

This request was ignored.  This was unfortunate because, as will appear, Ms Smidt put enormous weight on what she saw as a falsehood by Mr Sun regarding the maximum NCEE mark.  It would have been very easy to ascertain the maximum Guangdong NCEE in the 1988-89 academic year, and the information would have proved Mr Sun to be correct.  We know this because of material set out in two affidavits made after Ms Smidt’s decision and unsuccessfully tendered at the hearing before Lindgren J.  The affidavits were retendered at the hearing of the appeal.  Counsel for the Minister submitted they were inadmissible but acquiesced in our receiving and reading them on the basis that we would rule on admissibility in our reasons disposing of the appeal.

It is convenient to say immediately that I am of the opinion they were admissible, but only on a limited basis.  The material in the affidavits was not before Ms Smidt when she made her decision; so it would be erroneous to have regard to that material in considering the quality of her decision.  But there is a contention in this case that Ms Smidt failed to comply with the requirements of s 420 of the Act that the Tribunal provide a mechanism of review that is “fair” and “just” and that it “act according to substantial justice”.  In aid of that submission, Mr Lawler points to the Tribunal’s power under s 427(1)(d) to require the Secretary of the Department “to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation ...”.  Ms Smidt was obviously aware of that provision.  As has been seen, she made numerous requests to the Department for investigations to be carried out.  Ms Smidt appreciated, in words later used by Black CJ, von Doussa, Sundberg and Mansfield JJ in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291, that s 427(1)(d), and other provisions, “show that the Tribunal’s role in cases that come before it for review is not a passive one”.  But it is one thing for Ms Smidt to have appreciated the need to make particular inquiries, and to have failed to have done so; it is another thing to say the result was to deny Mr Sun substantial justice.  If it had been clearly shown that the result of the inquiry would not have advanced his case, there would have been no justification for setting aside the decision on that ground:  see Stead v State Government Insurance Commission (1986) 161 CLR 141.  This is where the affidavits become relevant.  They demonstrate the effect of Ms Smidt’s failure to ascertain the maximum Guangdong NCEE in the 1988-89 academic year, while assuming he had lied about it,  was to visit a substantial injustice on Mr Sun.

The first affidavit is made by Peter Alan Jackson, Mr Sun’s solicitor.  It annexes a fax from Kay Cheng, an officer of the Australian Consulate in Guangzhou, setting out the contact details of the Foreign Affairs office of the Guangdong Higher Education Bureau.  On 14 May Mr Jackson sent a fax to that office asking the “maximum standardised score that could be achieved for tertiary entrance purposes by a student graduating from school in Guangdong Province in the year 1988”.  The following day he received a reply that commenced:

“Thank you for your letter of 14 May 1996.  With regard to the maximum standardized score, I just have verified with the Enrollment Committee of the Guangdong Higher Education Department and sent a fax to Mr Tom Flynn, Director of the Educational Assessments and Research Section of the Department of Employment, Education Training and Youth Affairs of Australia.

In the facsimile, I confirmed that in 1988, Guangdong began to adopt the standardized scoring system for the National College Entrance Examination.  According to the system, the maximum score for every subject is 900 and the maximum total score for all required subjects is 900 as well.”     

The letter went on to set out minimum scores for admission to various institutions in Guangdong Province, a matter not presently relevant.

Not content with this, Mr Jackson telephoned the Australian Consulate in Guangzhou and spoke to Ms Cheng.  He referred to her fax and asked her to confirm “that you know what the maximum score was because you graduated from high school in 1988 yourself”.  She confirmed this and said the maximum score in 1988 was 900.

The person referred to as “Mr Tom Flynn” in the fax of 15 May is the deponent to the other affidavit.  He is Director of the Educational Assessment and Research Section of NOOSR.  He annexed to his affidavit copies of the Tribunal’s request for information about NCEE of 11 January 1996 and his section’s response, quoted above.  He went on:

 

“4.         If the Refugee Review Tribunal had asked for further information on when a percentile ranking on a scale of 900 had been introduced in Guangdong Province this section would have provided the Tribunal with a copy of an in-house NOOSR working document (a copy of which is annexed and marked ‘C’) together with a notation that this document was based on information collected on a visit undertaken by NOOSR to the People’s Republic of China in 1995 and other material including published materials) and that the information relating to the specific information in question had not been confirmed with the Guangdong Provincial Education Commission.

 

5.            If requested I would have ensured that the specific information was confirmed with the Guangdong Provincial Education Commission.  I have done that in this case for different purposes.  Annexed and marked ‘C’ is a copy of a reply received by NOOSR.”

 

As suggested by this extract, the affidavit contained two annexures marked “C”.  The first was a three page report containing the following paragraph:

 

            “Authorities in Guangdong Province advised the delegation that the NCEE was used in Guangdong Province but the marks were subsequently converted to a standardised scale with a maximum of 900 and a mean of 450.  Subsequent inquiries suggests that this arrangement commenced in 1988.”

 

The second annexure “C” was a fax dated 14 May from the Foreign Affairs Office of the Higher Education Department of Guangdong Province in similar terms to that sent on the following day to Mr Jackson.

The Smidt Tribunal decision:  claims and evidence

On 1 April 1996 Ms Smidt announced her decision “that Mr Sun is not a refugee and is not entitled to a protection visa”.  She gave reasons that extend over 68 pages.  It is obviously inappropriate to set out the reasons in full.  However, as this is the decision under challenge in this proceeding, extensive reference is essential.

Ms Smidt commenced by setting out a short history of Mr Sun’s applications.  She then discussed, in unexceptional terms, the relevant law and gave reasons for deciding to conduct a de novo review of the primary decision.  Under the heading “Mr Sun’s claims and evidence” she discussed many matters.  The first was “Mr Sun’s identity”.  In connection with that matter she recounted the circumstances of his arrival in Australia and the claims he had made about his travel, including that he had not obtained a visa to enter Australia and had been allowed to board the plane by a sympathetic check-in agent.  She noted the information about the check-in agent given by the Air Niugini official and said the agent:

            “provided the Department with a statutory declaration in which he said that Mr Sun had been in possession of visas for both Australia and New Zealand at the time he boarded his flight in PNG.”

 

Ms Smidt went on:

 

            “In a submission to the Tribunal constituted by Ms Ransome prepared by Ms Le, Mr Sun said that he had destroyed his passport because, while a false passport had been essential for him when he fled China and entered PNG, he is essentially honest and as he intended to apply for refugee status in Australia, he did not want to enter the country with a false passport.  Ms Le points out that he advised the authorities that he wanted to seek refugee status immediately on his arrival to Australia ...

 

With regard to Mr Sun’s claims regarding his lack of a visa, Ms Le argued at the second Tribunal hearing that he would not have destroyed his passport if it contained a visa which would have allowed him to enter Australia.  She also argued that Air Nuigini officials would seek to conceal their responsibility for allowing someone without a visa to board a flight for Australia and their evidence on this matter should therefore not be trusted.  Alternatively, she suggested that Mr Sun may have been able to board the plane because his lack of a visa was overlooked by a careless official.  In her letter dated 12 February 1996, she argued that the official who allowed Mr Sun to board the plane without a visa may have been moved by his story and may perhaps have refused to board other passengers without proper documentation because they were ‘obnoxious or belligerent’”.

 

Ms Smidt then referred to Mr Sun’s note at the hearing on 18 December 1995 concerning his reason for filling in the card.

Ms Smidt turned to “Mr Sun’s family background”.  She set out the claims made by Mr Sun about his parents.  Under the heading “university entry”, Ms Smidt recorded the information the Tribunal had obtained about NCEE.

Ms Smidt then mentioned Mr Sun’s claims of involvement in the 1989 pro-democracy movement.  She set out the gist of the information he had supplied on the three occasions he had given an account of these matters.  In particular, she noted Mr Fordham’s attempts to extract from Mr Sun details of his involvement, and what Mr Sun had then told Mr Fordham.  Ms Smidt dealt with Mr Sun’s claims about his activities in Foshan, and his departure from China, the photographs Mr Sun brought to Australia and Mr Sun’s application for a passport.  She then recorded the suggestion of bias and her reaction to it.  Because of the centrality of that issue, I will quote that passage in full:

           

“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 that I appeared unwilling to following the UNCHR 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.

In written submissions handed to the Tribunal during the course of the hearing, Ms Le stated that Mr Sun’s mental health was deteriorating as a result of his perception that the Tribunal was biased against him.  She said that he was particularly disturbed at the issuing of a summons for his photographs, the lack of guarantee that the photographs would be returned and indications that certain of his claims were doubted by the Tribunal.  In her letter of 14 January 1996 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’s 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.  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.”

Under the heading “Mr Sun’s psychological state”, Ms Smidt summarised Dr Stevens’ report.  She also mentioned the observations of Ms Le concerning Mr Sun’s mental deterioration.  Ms Smidt commented:

 

“I do not doubt that Mr Sun was greatly stressed when he consulted Dr Stevens in August 1995.  However, there is no suggestion that he was suffering these symptoms when he gave his evidence to the Department or the Tribunal in relation to either his first or his second application for refugee status.  As noted above, Ms Le told Dr Stevens that until a few months before August 1995 Mr Sun was ‘positive if resigned’ and also commented on his intelligence and the leadership role he played while in Villawood Detention Centre.  In her submission provided to the Tribunal at the hearing on 18 December 1995, she noted that Mr Sun used to be looked up to by others at the detention centre because he was part of a group which voiced its concerns about the management of the centre and because he assisted others by translating their petitions to the Minister into English.  She described him as a leader by nature and said that he showed rare wisdom for one of his years.  In her submission to the Tribunal dated 18 February 1996 she stated that, as far as she knows, Mr Sun was not suffering from extreme depression at the time he gave evidence at the hearing conducted by Mr Fordham..

 

            ...

Mr Sun had ample opportunity to provide [sic - prove] his claims prior to the deterioration in his mental state in the latter half of 1995.  In a submission dated 30 October 1995, Ms Le said that the Mr Sun did not want to attend a hearing of the current Tribunal and pointed that he had already attended lengthy Department interviews and Tribunal hearings, particularly the hearing with Mr Fordham.  Ms Le pointed out that the tapes of these interviews and hearings were available and added that Mr Sun was content that the current Tribunal proceed on the basis of the evidence given previously by Mr Sun.  In his submission of 9 October 1995 Mr Jackson also notes that Mr Sun was closely questioned about his involvement in 1989 by Mr Fordham.

Furthermore, I note that despite suffering the symptoms of PTSD, Mr Sun was able to tell his story to Dr Stevens and continued to hold conferences with his legal representatives to discuss his case.  Mr Lawler, the barrister who represented Mr Sun from early 1995 in his Federal Court appeal and continued to hold discussions with Mr Sun regarding the case until early August 1995 commented that Mr Sun was a very intelligent man, although he notes that he may become confused when he does not understand a word or a concept.

In December 1995 Mr Sun wrote two letters [to] the Tribunal in English.  While it is clear from these letters that he was upset, they are both completely coherent letters written in excellent English.

I also note that Mr Sun has had qualified representatives throughout most of his dealings with the Department and the Tribunal.

In these circumstances, 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.

I have also noted Dr Stevens comment that he found Mr Sun genuine and direct in his replies to the questions he provided.  Although it is not specifically stated, it is clear that Dr Stevens believed the information Mr Sun provided to him regarding his activities in China.  However, as discussed above, findings of fact on claims for refugee status are a matter for the Tribunal and for the reasons set out below, I do not accept the claims made by Mr Sun.”

Ms Smidt’s statement that “Mr Sun had ample opportunity to prove his claims prior to the deterioration in his mental state in the latter half of 1995” seems to me curious.  It was during this period that Mr Sun satisfied Mr Fordham, who questioned him at length about the matter, that he had participated in the pro-democracy movement in Beijing in April-June 1989, a claim that Dr Stevens also accepted.  Yet Ms Smidt, who did not meet Mr Sun until after the deterioration set in, was prepared to reject those claims.  If Mr Sun’s claims, as recorded from pre-deterioration interviews, were inconsistent with more reliable information unearthed by her, she was entitled to reject the claims on that ground.  But it seems unreasonable to suggest Mr Sun had failed to convince before the advent of his mental deterioration.

The Smidt Tribunal decision:  findings

The section of Ms Smidt’s reasons headed “Assessments of Mr Sun’s claims and matters to be determined” commenced with a short summary of his case.  Ms Smidt then commented:

 

            “There is no doubt that human rights abuses occur in China and that some Chinese citizens have been detained or faced other serious problems as a result of their opposition to the government.

 

I must now assess whether Mr Sun faces real chance of such treatment on his return to China as an individual or as part of a class of individuals.  In order to do this, I will begin by make [sic] findings of fact regarding Mr Sun’s past activities.”

 

Ms Smidt’s first finding of fact dealt with Mr Sun’s identity.  I will set it out in full:

           

“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 by entering the country with false documents.

 

Under the Migration Act, airlines face large fines, plus any costs relating to detention and removal of people who travel to Australia without proper documentation.   I have no doubt that agents responsible for boarding passengers are aware of this and that they risk serious disciplinary actions if they boarded people in these circumstances.  Mr Sun claims that the check-in agent allowed him to board the plane in PNG without documents because he was sympathetic to his plight.  Yet Mr Sun was not fleeing persecution in New Guinea.  He was in possession of a passport which had been accepted as genuine by the migration officials in both Hong Kong and PNG and could easily have applied for a visitor visa for Australia in PNG.  In these circumstances, I consider there is no more than remote possibility that even the most compassionate booking agent would have allowed him to board the plane without a visa.  Furthermore, the agent who boarded Mr Sun in Port Moresby has provided a statutory declaration stating that Mr Sun’s passport contained visas for both Australia and New Zealand.  The agent’s supervisor has stated that the agent in question had refused to board passengers on this and other flights, even when there appeared to be compassionate reasons for doing so.  In these circumstance, I do not believe that Mr Sun boarded his Air Nuigini flight in PNG without a visa for Australia.

In reaching this conclusion I have noted Ms Le’s suggestion that her client may have been able to board the plane in PNG because the airline official was careless.  However, Mr Sun himself has never suggested this to be the case.  He has always claimed that the official was aware than [sic] he had no visa, but still allowed him to board his flight.

The departure card completed by Mr Sun and checked by PNG migration officials prior to his departure contains information which contradicts Mr Sun’s claims regarding the details contained in the passport he used to enter and leave PNG and the period he remained in the country.  Mr Sun claims that these details have nothing to do with the identification he was carrying and he wrote them on the card so it would appear full.  I do not accept that, rather than complete the card in accordance with the information contained in his passport, Mr Sun would have provided an almost completely different set of information.  Furthermore, while I acknowledge that migrations officials may overlook some differences between the information contained on a departure card and that contained on a passport when checking a departing visitor, I do not believe they would have failed to notice such significant differences as those contained in the documents 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.

Mr Sun claimed that he destroyed his passport because he did not want to mislead Australia [sic] officials by entering Australia using false documents as he intended to apply for refugee status.  Mr Sun had no such scruples about using this passport when entering or leaving Hong Kong and New Guinea and I find this explanation far-fetched and implausible.  Furthermore, as noted above, 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, martial [sic] status and possibility [sic] even name) 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.

I have also noted Ms Le’s suggestions that Mr Sun may have destroyed the passport he held in New Guinea to avoid deportation or to protect those who helped him to leave China.  As Ms Le herself stated, these suggestions are mere speculation on her part.  While it has been noted that decision makers must speculate to some extent when determining applications for refugee status, this surely cannot mean that speculations of this kind need be given serious consideration.  Mr Sun must know why he destroyed his passport and it is his explanation, rather than Ms Le’s speculation, that is relevant to the Tribunal.  Mr Sun has never claimed that he destroyed his passport for the reasons suggested by Ms Le and I have no reason to suppose that either of the explanations is true.  Had Mr Sun destroyed his passport to avoid deportation or to protect those who provided him with the document, he would have lost nothing by saying so.

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.

In a statement dated 18 February 1996, Ms Le submits that neither she nor her client had the power or the capacity to obtain evidence which would corroborate his claims regarding his identity and the manner in which he travelled to Australia.   Mr Sun  claims that he spent some six months living and working for a Chinese man in PNG before coming to Australia.  However, he refused to name this man to Mr Fordham and even after it was pointed out that this Tribunal had difficulty accepting his claims regarding the identity he used in PNG and the length of [sic] he spent in that country, made no attempt to obtain corroborating evidence from his friend.  Mr Sun told Mr Fordham he did not wish to name his PNG friend because he did not wish to ‘implicate’ him in his case.  According to Mr Sun’s evidence this man did no more than offer him friendship and assistance while he was in PNG, actions which could cause him no serious harm.  Furthermore, all information passed to the Tribunal is held in confidence, a fact explained to Mr Sun by both the Department and the Tribunal.  I find Mr Sun’s failure to even attempt to seek evidence from his friend a further indication that he is concealing information about his identity and his time in PNG.”

Reflecting things put in argument, a number of comments may be made about this finding.  First, it is not clear what Ms Smidt was saying about identity.  In the last sentence of the passage she referred to him “concealing information about his identity”.  So she apparently doubted he was the person he said he was - Sun Zhan Qui, the son of Sun Hai and Li Nai of 159 Hai Zhu Road South, Guangzhou.  That was a matter that could easily have been checked with the assistance of the Australian Consulate in Guangzhou and, perhaps, a photograph of the person applying for refugee status.  But Ms Smidt had cancelled the request even to verify the address.

Second, Ms Smidt did not accept that Mr Sun never possessed a visa for Australia.  She thought he had a visa when he departed Port Moresby, that it was contained within the passport he then held and the details on his Papua New Guinea departure card were “substantially the same as those on his passport”.  It follows that the passport must have been in the name of “Jegu Sun”  (or perhaps “Sun Jegu”) and the visa likewise.  Yet Ms Smidt had no evidence to suggest that the Australian authorities ever issued a visa to anyone named “Jegu Sun” (or “Sun Jegu”).  Had a search of the computer base of the 88 page list been made, it would have established they had not.  But Ms Smidt had withdrawn her request for information about visas.  Instead, she chose to reach a conclusion by reference to the position of the check-in agent.  If she was minded to put weight on that factor, it would at least have been desirable to call for his statutory declaration; but she did not do so.   If she had, it seems, she would have discovered that - contrary to a statement made earlier in her reasons and quoted above - the statutory declaration had not been provided to the Department.  There is no evidence that such a declaration ever reached Australia.  It may not have existed at all.

The true identity of the applicant for refugee status was, of course, a matter of cardinal importance.  Apart from that, the only relevance of Mr Sun’s manner of travel to Australia was in relation to his general credibility.  As Mr Fordham had pointed out, a lack of credibility in relation to one aspect of a refugee claim does not necessarily mean the claimant is to be disbelieved in relation to others.  Nonetheless, any loss of faith in a witness’ integrity will almost inevitably affect the decision maker’s willingness to accept uncorroborated claims in relation to other matters, and in refugee cases there will always be claims incapable of corroboration.  So it is important for a Tribunal member to make adequate inquiries before reaching a conclusion that an applicant is “concealing information” even on a peripheral matter.

The next finding of fact made by Ms Smidt concerned Mr Sun’s participation in the 1989 pro-democracy movement.  Here she parted company with Mr Fordham, who had found that Mr Sun was a university student in Beijing at the time and a participant in the movement, albeit a relatively minor one.  Ms Smidt did “not accept that Mr Sun played a leading or an active part in the 1989 pro-democracy movement in Beijing”.  Indeed, she thought he was not even there, “he did not enter the People’s University of China in Beijing in 1988”.  Ms Smidt reached this conclusion by reference to the university entry mark.  She said:

 

            “Mr Sun claims that he obtained an entry mark of 819 in his university entrance examinations in 1988 and that the total score possible in the national university examination in that year was 900.  According to the Chinese Consulate in Sydney, the total mark obtainable in 1988 was 710 in science subjects and 640 in liberal arts.  When this was pointed out to Ms Le in a letter dated 13 March 1996, she asked Mr Sun what the total score possible had been in 1988.  According to her letter dated 24 March 1996, he stated that the highest score possible was 900, but added that the score had previously been 640.  Ms Le submitted that the information obtained by the Tribunal may be incorrect and asked that it be verified.

 

The Tribunal first sought information on the entry requirements for the People’s University of China in October 1995.  Faxes requesting this information was sent to the People’s University in Beijing, but no reply was ever received.  On 17 January 1996, Song Shen, Consul, Education Section of the Consulate General of China in Sydney advised that the highest possible tertiary entry mark for 1995 was 750 for all students.  Mr Song was then asked if he could advise the highest score possible in the university entrance examinations for the academic year beginning in 1988.  He replied that the total mark obtainable in 1988 was 710 in science subjects and 640 in liberal arts.

The Tribunal sought information from other sources, including the National Office of Overseas Skills Recognition.  In a letter dated 11 January 1996 a [sic] officer from NOOSR replied that while the examinations are national, the methods of calculating scores can vary from province to province.  The most common method of calculating scores involves a maximum of 710-720 in the science stream and a maximum of 610-620 in humanities.  The letter notes that those seeking entrance to university in Guangdong recently have been graded out of 900.  However, there is nothing to suggest that those seeking entry into the People’s University of China in 1988 were assessed out of a total score of 900 points.

I see no reason to [sic] I see no reason to doubt its veracity or its accuracy of the information received from the Chinese Consulate Education Section regarding the 1988 entry mark, which was in response to a specific inquiry regarding that particular year.

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.”

It is correct, as Ms Smidt said, that the Tribunal specifically asked the Chinese Consulate Education Section (but not NOOSR) about the 1988 entry mark; see the faxes mentioned above.  On 1 February 1996 information was given about that matter (710 for science and engineering and 640 for the liberal arts).  If she had had no other information, Ms Smidt could not be criticised for assuming these figures applied to Guangdong Province and concluding Mr Sun was lying, or at least mistaken, when he claimed to have scored 819 marks.  But there was additional information.  On 11 January 1995 NOOSR had advised that ‘“recently” other methods had been used “such as a percentile ranking on a scale of 900 in Guangdong Province”.   Ms Smidt did not follow this up.  Had she contacted the Guangdong authorities, or even the Australian Consulate in Guangzhou, she would have found the 900 scale applied in Guangdong Province in 1988.

Lest it be thought I am being unduly critical of Ms Smidt in noting she did not inquire what NOOSR meant by “recently”, I point out it was her decision to rely heavily on this point.  Until she took charge of the case, it seems not to have been doubted that Mr Sun was a student at the People’s University of China in Beijing in 1989 and participated in the pro-democracy movement.  What was in issue was the extent of his participation and the likely consequences for him of that participation if he was returned to China.  Ms Smidt was entitled to decide the application on a different basis, by questioning something everyone previously had accepted.  However, if she was to approach the matter in that way, it was critical for her carefully to check her facts.

The next finding of fact made by Ms Smidt concerned the 19 April 1989 demonstration at Zhongnanhai.  She said Mr Sun’s account of this demonstration “differs significantly from other accounts before the Tribunal and I do not believe that he participated in this event”.  Ms Smidt noted Ms Le had pointed out there were two rallies at the Xinhuamen Gate, Zhongnanhai, one commencing on the evening of 18 April, the other the following evening.  Ms Smidt referred to a description of these rallies in “Quelling the People”, by Timothy Brooks.  She quoted that description.   It includes an explanation that Zhongnanhai (Middle and South Lakes) is the former imperial pleasure park, west of the Forbidden City, where top government leaders live and work.  Brooks said, on the evening of 18 April, students “gathered in front of Xinhaumen, the ornate entrance at the south end of Zhongnanhai, and asked to speak directly to Premier Li Peng”.  He then described attempts by the students to push their way through the gate and other disorder that lasted until 5am when the demonstrators dispersed.  On the following day, there was a gathering at Tiananmen Square.  By early evening the crowd had grown to over a hundred thousand:

“Later, several hundred students, followed by about eight thousand onlookers, proceeded once again to Party headquarters at Zhongnanhai.  They reached the entrance gate of Xinhaumen at 11:30PM.  Guards again prevented them from entering.  The standoff continued until 3:40PM when the government broadcast another warning to disperse.  Some were persuaded to leave an hour later, but the remaining few refused to go.  A squad of unarmed PAP came to remove them.  The students were hustled roughly onto a bus and driven back to their campuses.  A few were kicked and beaten.”

 

Ms Smidt went on to refer to other published accounts of the events of 19 April.  They all included references to the students chanting and shouting insults and demands for the Premier, Li Peng, to come out for a dialogue.  Ms Smidt thought these accounts inconsistent with Mr Sun’s version of events.  She said:

            “Despite the differences between these accounts, one thing is abundantly clear; neither the demonstration which occurred at Xinhuamen on 18 April nor the demonstration which occurred there the following evening could be described as ‘a silent sit down protest’.  They were both noisy, physical demonstrations which at their height involved thousands of participants.

 

I acknowledge that Mr Sun provided his account of this rally to Mr Fordham nearly five years after the event.  However, I do not accept that a young man of Mr Sun’s intelligence would not remember in greater and more accurate detail the events of these momentous days.  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.

 

In reaching this conclusion I have considered Mr Sun’s claim of 18 December 1995 that, while he was involved in a silent sit-down protest, other students were more vocal and actively engaged in attempting to gain entry to Zhongnanhai.  The 19 April 1989 rally was discussed at some length during the hearing with Mr Fordham, but Mr Sun made no mention of more vocal students attempting to gain entry to Zhongnanhai; on the contrary he maintained that he had been involved in a silent sit down protest of several hundred students and no other demonstrators were involved.  Mr Sun’s claim that some students were more vocal than he was only made after it was pointed out that his account of events was at odds with the independent evidence before the Tribunal and I do not accept this explanation for the discrepancy between his evidence and that contained in the eye witness accounts before the Tribunal.”

 

Mr Sun’s evidence to Mr Fordham regarding this incident extends over several pages of transcript.  Mr Fordham had some spelling and geography problems but Mr Sun’s description clearly establishes it was the place described by Brooks.  Mr Sun did not say what time he went to Xinhuamen gate but he said “a few hundred” students went there; they “sat down in silent protest” and “held up slogans”.  The slogans read “requesting for dialogue”.  He said the students stayed for a “very long time until 20 April am.  The police came and chased them and arrested and then to back to school”.  Mr Sun said he stayed until he was “arrested and brought back to school”.  His evidence proceeded:

 

            “MR FORDHAM:  Can you describe how the police arrested you?

 

            THE INTERPRETER:  With the police rod and also the leather stuff and dragged them into the vehicle.

            MR FORDHAM:  When you say leather stuff what do you mean by leather stuff?

 

            THE INTERPRETER:  The leather belt.

 

            MR FORDHAM:  Were you put into a police vehicle?

 

            THE INTERPRETER:  It’s not police vehicle, it is the prepared public vehicle.

 

            MR FORDHAM:  Did the police touch you when they put you on to the vehicle or did you just go on by yourself?

 

            THE INTERPRETER:  Grabbed.  Dragged and grabbed.  Dragged and grabbed.

 

            MR FORDHAM:          Threatened?

 

            THE INTERPRETER:  No, dragged.

 

            MR FORDHAM:  Oh, dragged?

 

            THE INTERPRETER:  And grabbed.

 

            MR FORDHAM:  And grabbed.  So they physically held you?

 

            THE INTERPRETER:  Two, one on each side.

 

            MR FORDHAM:  And then when they put you into this public vehicle it brought you back to the university, is that what you are telling me?

 

            THE INTERPRETER:  Yes.

 

            MR FORDHAM:  How many other students were on this vehicle with you?

 

            THE INTERPRETER:  Full - the vehicle was full.

 

            MR FORDHAM:  And what sort of vehicle was it, was it a bus or was it a truck?

 

            THE INTERPRETER:  Bus.”

 

This account does not refer to shouting, but otherwise it has much in common with that of Brooks.  A lot depends on when Mr Sun reached the gate, a matter about which he was not questioned.  On Brooks’ account there was a “stand off” for about four hours, during which the students may well have sat down in silent protest holding placards.  In this regard, it is interesting to compare another account, quoted by Ms Smidt, from “Mandate of Heaven” by Orville Schell:

 

            “Late that night, some 20,000 demonstrators again flocked to Xinhaumen demanding that Li Peng come out for a dialogue.  They chanted ‘Let Cixi retire!’ - an unflattering equation between Deng and the autocratic Empress Dowager Cixi who ruled during the last years of the Qing Dynasty.  Just as their pushing and shoving against the beefed up phalanxes of police threatened to get out of hand ...  Wu’er Kaixi .. began calling for the mob to sit down on the pavement.  Almost miraculously, he succeeded in transforming the dangerous shoving match between the demonstrators and the police into a free form teach-in...

 

            Despite Wu’er charismatic efforts to defuse the situation, events took a turn for the worse later that night.  Around 3 am, when only a few hundred demonstrators remained in front of Xinhuamen ... policemen waded into the remaining demonstrators with clubs flying ...”

 

Ms Smidt then referred to Mr Sun’s account of a demonstration on 27 April.  She conceded that “(m)any of the details which he has given about this event accord with those in published accounts of the day”.  “However”, she said, “there are some discrepancies between his account and that contained in other accounts”.  Ms Smidt then quoted five published accounts of the day and concluded:

 

            “From the above it is clear that the students marched from their campuses to Tiananmen Square.  Police barricades put up to prevent them reaching the Square were broken and the students marched on to the Square.  However, they did not occupy the Square.  They marched on along Changan Boulevard, which runs along the northern side of the Square.  Some appears [sic] to have then returned to their campuses by bus, others continued on and marched around the city before marching back to their campuses.  From these descriptions 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.”

The first thing that will strike any reader of the five published accounts is the differences between them.  The first account (in “Tell the World” by Liu Binyan) has the demonstration starting during the day at Liubukou, near Zhongnanhai, and then breaking through a police cordon.  According to this account, in the evening of 27 April, about 7pm, “the demonstrators gathered in Tiananmen Square and marched east back to the universities”.  Schell says, in the morning, “students from forty different universities surged out of their campus gates and, with banners flying, poured onto the streets”.  They pushed through cordons of police near their campuses and ultimately formed a long column of marchers comprising about 150,000 people.  They passed by Xinhaumen before entering Tiananmen Square, from which they dispersed in different directions.  Brooks put the crowd at “over a hundred thousand” but said that, when the students “converged at the Square, they found fifteen trucks and a tight cordon of hundreds of men in uniform awaiting their arrival.  Rather than try to occupy the Square by force, the students simply walked by it along Changan.”

Fathers and Higgins, in “Tiananmen:  The Rape of Peking”, spoke about a “14 hour parade” that was “150,000 strong and covered nearly 25 miles”.  These writers agree the students did not enter Tiananmen Square, but this was not because they were blocked by trucks and men in uniform but because they chose not to.  However, Fathers and Higgins also said the students “seize(d) virtual control of the centre of Peking”.  They described the students surrounding a convoy of 20 military vehicles filled with soldiers that was parked outside the Great Hall of the People:

            “Anger quickly turned to farce, as it became clear that the troops wanted to [do] nothing more than escape ... officials looked on helplessly as the parade flowed by.  Then, the students had one more surprise in store for them; rather than halting to occupy Tiananmen Square, they marched straight on past, chanting and singing as they entered on the homeward leg of their journey.  They had conquered Tiananmen.  They knew it.  The officials knew it.  There would be no need for further ado...”

 

Terril (“China in Our Time”) wrote of “a tumultuous rally of one million people that made of Tiananmen Square a district of dissent” and “a display of popular will that lasted eighteen hours”.  He quoted a student’s account of police blocking the marchers’ road at Liubukou.

To take only one point, it will be noted two of these writers (Liu and Schell) have the students entering Tiananmen Square, two of them have the students failing to do so (Brooks because this would have needed force and Fathers and Day because they chose not to do so, despite the absence of resistance) and one leaves the matter unclear.

Mr Sun told Mr Fordham that 27 April was the date of the “establishment of the students’ autonomous federation in Beijing” when “they held a big march for the first time”.  He said he was involved in the march.  Asked to estimate the number of participants, he replied “Many students - hard to estimate”.  Mr Fordham sought “a rough figure” and Mr Sun replied “a few tens of thousands”.  He was asked “where did you start the march?”; and replied “from Tiananmen Square”.  He said the march went “around in circles” - not “around Tiananmen Square” but “in wider circles than Tiananmen Square”.  He named several streets and said “we returned to Tiananmen Square”.  Asked how long the march lasted, he responded “very long time”; pressed, “about three hours”.  Later he talked about “a few hours”.  Mr Sun said the march “caused a lot of the big crowds to watch in support” and spoke of crippling of traffic and the students carrying banners with slogans.

After referring to the various published accounts of the events of 27 April, Ms Smidt said she “did not believe that anyone who was present would have described the event as a three hour march beginning and ending in Tiananmen Square”.  With respect, however, the question Mr Fordham asked Mr Sun was “where did you start the march”.  The march was clearly an amorphous thing, gathering and losing participants over a long period and sometimes breaking into fractions.

I do not think it can fairly be said Mr Sun’s account conflicts with any of the accounts quoted by Ms Smidt, only that it is less comprehensive.  That is not surprising.  Unlike the writers of the five works, Mr Sun was not pretending to give a global description of the events of that day; he was simply describing his participation and observations.  On a day of tumult, there would have been much he did not see.  It was a bold step for a person who was not herself in Beijing on 27 April 1989, and did not hear and see Mr Sun give his account, to conclude his description “could only be made by someone who was not present”.

Ms Smidt then dealt with the period between 27 April and 4 June.  I agree that Mr Sun’s account of this period was sparse.  It is not clear why it was, but Mr Fordham and Mr Sun were at cross-purposes for several pages of transcript between the end of Mr Sun’s description of 27 April and the beginning of his description of 4 June.  This was not Mr Fordham’s fault; he did his best but many answers were confused or non-responsive.  Perhaps Mr Sun was prevaricating; perhaps the interpretation was poor, as Ms Le suggested.  However, three comments should be made.  First, Ms Smidt said Mr Sun claimed he remained at Tiananmen Square for most of the period between 27 April 1989 and 4 June 1989, returning only for brief periods to collect things or perform other tasks.  She disbelieved this because the “independent evidence before the Tribunal indicates that, at least for several weeks after this date (presumably 27 April) the  majority of the student demonstrators marched, or cycled between their campuses and the Square”.  This statement accepts that a minority did not do so; Mr Sun could have been among the minority.  Anyway, Mr Sun’s account did involve a deal of shuttling between the Square and his university.  The evidence is vague; “brief periods” is Ms Smidt’s interpretation.  In fact, Mr Sun gave evidence about a hunger strike during which many students fainted, so he took them to hospital or got them food, and visits back to the university to help with the organisation of rallies and the recruitment of his classmates.   On the transcript, it is really impossible to say what proportion of time he spent away from Tiananmen Square during these five weeks.  Second, despite the limitations in the account of this period that Mr Sun gave to him, Mr Fordham accepted it.  Ms Smidt had no new information that might suggest he erred in doing so.  Third, Mr Sun gave Mr Fordham a detailed (and graphic) account of the events of 4 June.  Mr Fordham accepted that account and Ms Smidt offered no comment. 

Under the heading “Conclusions about Mr Sun’s involvement in the pro-democracy movement of 1989”, Ms Smidt wrote:

 

“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 [sic - 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.”

 

Ms Smidt went on to discuss various submissions of Ms Le that she said she had taken into account in reaching these conclusions.  She then referred to the photographs:

           

“Ms Le has argued that Mr Sun’s possession of the photographs and, more particularly, the negatives he carried to Australia proves that he was involved in the demonstrations, was in Tiananmen Square on the night of 3 June 1989 and took these photographs himself.  The fact that Mr Sun carried these photographs with him when he came to Australia does not necessarily mean that he took them or that he was present when they were taken.  There is nothing in the photographs themselves which proves that Mr Sun was an active participant in the 1989 demonstrations, nor that he took them or that he was present when they were taken.”

 

This passage cannot be criticised, as far as it goes.  It is true Mr Sun’s possession of the photographs does not necessarily mean he took them.  But Ms Smidt seems to have thought this meant the photographs should be discarded from consideration; she made no subsequent reference to them.  She seems not to have appreciated that, although Mr Sun’s possession of the photographs did not conclusively prove he took them, possession of the photographs, especially with negatives, was a circumstance supporting that view of the facts; and, therefore, to be taken into account.  Weight was a matter for Ms Smidt, but it could not be contended the fact of possession was a circumstance of no weight.  Ms Smidt had been advised the photographs were not reproductions from a newspaper, magazine or video-tape.  They were so politically sensitive they were unlikely to have been sold or given away by the photographer; anyway, how did Mr Sun get them (especially the negatives) if he was not in Beijing on 4 June? 

Mr Sun had told Ms Smidt the photographs were taken with a Chinese-made Hong Mei camera.  Presumably this information could have been checked; Ms Moss had advised Ms Smidt to ask Mr Sun to describe the camera equipment used.  If it had been established these photographs were taken with a Hong Mei camera, that would have strengthened the inference, although not conclusively proven the fact, that Mr Sun was the photographer; if it had been established they were not, that would have seriously undermined Mr Sun’s credibility.  Inexplicably, it seems Ms Smidt made no attempt to obtain advice as to whether these photographs were, or could have been, taken with a Hong Mei camera.

Similarly, Ms Smidt failed to consider the significance of Dr Stevens’ opinion that Mr Sun was suffering from post traumatic stress disorder, a condition that characteristically follows exposure to an extreme traumatic stressor such as experiencing or witnessing military combat or violent personal assault.  Dr Stevens’ opinion had not been challenged and was expressly accepted by Ms Smidt.  That Mr Sun suffered post traumatic stress disorder in 1995 did not necessarily prove he participated in the horror of Tiananmen Square on 4 June 1989, but it was consistent with that fact.  Especially in the absence of any other suggested traumatic event, it was a circumstance that tended to support Mr Sun’s claim.  Once again, weight was for Ms Smidt to decide, but it was erroneous for her totally to disregard this matter.

After completing her findings about events in Beijing, Ms Smidt turned to the period between 4 June 1989 and Mr Sun’s departure from China.  She commenced with this robust finding:

 

            “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.”

 

In justification of that finding, Ms Smidt referred to published accounts and country reports about post-June 1989 repression.  She noted that reports published “soon after the events of 1989” made it “clear that at the time many people feared that the reprisals would be extremely harsh and widespread, seriously affecting most participants”.  Ms Smidt went into much detail about this, speaking of “widespread investigations ... to identify and punish those involved”, encouragement of citizens to confess their own participation in demonstrations and to inform on others and the use of Neighbourhood Committees to find dissidents.  She said the consequences faced by participants varied considerably.  Some faced no more than additional political education sessions but many people were detained “... the national total appears to have been between 10,000 and 30,000.  Some earlier reports suggested figures as high as 100,000, but the estimates were not repeated in later reports”.  Ms Smidt made the point that detainees “represented only a very small percentage of those who participated in demonstrations as more than a million people demonstrated in Beijing alone and tens, if not hundreds, of thousands ... in demonstrations elsewhere in China”.  But she did not consider what proportion of students - or, even more relevantly, organisers of students - were detained.   Those proportions would have been much greater.  Ms Smidt also made the point that “the government’s interest (in) investigations or pursuing participants lessened with passage of time”, as one might expect.  She referred to a work “Between Freedom and Subsistence” in which the author, Ann Kent:

 

            “divides the post-Tiananmen into three periods ...  The first six months or so saw ‘continuing coercion in the form of arbitrary arrests, summary executions, forced interrogations and the maintenance of martial law in Beijing accompanied by emotionally charged propaganda.’

 

The second phase, which lasted throughout 1990 and into early 1991, saw a move away from overt coercion and some easing of control with the ending of martial law and release of a large number of prisoners.  The government announced a number of reforms to the political structure and the economy.  Political reforms were to take the form of perfecting the existing system and strengthening links between the party and the people through communication downwards.  Increased attention was paid to social policies in areas such as health, education and employment.

 

The third phase began in the first quarter of 1991 with the release of proposals for the drawing up of a ten year program and the announcement that trials of those involved in the ‘anti-government riots’ of 1989 were basically complete.  While reforms in social and cultural rights were announced and economic reform continued to transform aspects of Chinese society, civil and political freedoms were still heavily circumscribed, although efforts to enforce control in these areas were increasingly arbitrary and piecemeal.  Intellectual debate continued, although it was more restricted than before 1989.  Human rights were again debated in scholarly journalism.  The bottom line appeared to be that Chinese citizens could not openly question Marxism or the Chinese Communist Party.”

 

After referring to other works and submissions put to her Ms Smidt said:

 

            “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 suggest[s] that someone who participated in the 1989 pro-democracy movement in the manner claimed by Mr Sun would not 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.

 

In reaching this conclusion, I have noted Mr Sun’s claim that he continued to be involved in political activities after 1989.  However, 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.  If [sic] follows that these alleged activities cannot not have had any influence on the authorities’ attitude towards him prior to early 1993”.

 

After referring to other matters, Ms Smidt concluded:

 

            “As discussed above, I do not accept that Mr Sun was an active participant in 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.  However, according to his evidence the members were observed meeting in a park, after which their activities were investigated and that some members were interrogated and warned to cease their activities.  Despite this, none of the members of the group were not detained [sic] 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 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] 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], I found the overall pattern of fabrication, exaggeration and conceal 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.”

Three comments may be made about those conclusions.  First, they were heavily influenced by Ms Smidt’s rejection of Mr Sun’s claim to have been a participant in the pro-democracy movement in Beijing in 1989.  Second, whether or not the activities of the Foshan group became a matter of “serious interest to the authorities” might depend on whether they were pursued after a warning.  If a person is a member of a group that persists with activities despite a warning from the authorities (as Mr Sun claimed), that person may be at a greater risk of persecution than other people. Third, Mr Sun did not claim his participation in the Foshan group had been discovered or the authorities knew his false name.  So it is difficult to see why it should be thought unlikely he would use that name for his false passport.

Ms Smidt turned to the matter of the passport application.  She concluded with some observations that Mr Lawler contends to be indicative of actual bias:

 

            “I do not believe that the Chinese authorities refused to issue Mr Sun.  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.”

Ms Smidt’s final “Conclusions on Mr Sun’s evidence regarding his past activities” were in these terms:

 

            “I did 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] believe that Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement and that he organised his classmates participation throughout the period.  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 he [sic] 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.”

 

After dealing with the question whether Mr Sun’s refugee application and Federal Court appeal would of themselves put him at risk of persecution if he were returned to China, Ms Smidt stated her “Overall conclusions”:

           

“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 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 not entitled to a protection visa.”

 

 

The primary Judge’s reasoning

 

As mentioned, Mr Sun sought review of Ms Smidt’s decision pursuant to s 476 of the Migration Act.  That section is in these terms:

 

“476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds.

 

(a)   that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

 

       (b)      that the person who purported to make the decision did not have jurisdiction to make the decision;

 

      (c)       that the decision was not authorised by this Act or the regulations;

 

     (d)        that the decision was an improper exercise of the power conferred by this Act or the regulations;

 

     (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 fraud or by actual bias;

 

    (g)         that there was no evidence or other material to justify the making of the decision.

 

  (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.

 

  (3)        The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

 

  (a)           an exercise of a power for a purpose other than a purpose for which the power is conferred; and

 

 (b)            an exercise of a personal discretionary power at the direction or behest of another person; and

 

 (c)           an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

 

but not as including a reference to:

 

(d)             taking an irrelevant consideration into account in the exercise of a power; or

 

(e)             failing to take a relevant consideration into account in the exercise of a power; or

 

(f)             an exercise of a discretionary power in bad faith; or

 

(g)             any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

 

(4)    The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

 

(a)             the person who made 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.”

 

 

On 6 May 1997, Lindgren J delivered a judgment dismissing that application.  His Honour’s reasons are lengthy.  I will merely summarise his principal conclusions:

(i)           Section 420(1) of the Migration Act does not set out “procedures that were required by this Act ... to be observed in connection with the making of the decision”, within the meaning of s 476(1)(a).

(ii)           The word “decision” in s 416(d) of the Act refers only to the ultimate decision made by the Tribunal on an earlier application “and perhaps any finding or findings of fact essential or indispensable to that decision, (but) does not extend  or refer to other findings of fact made in the course of the determination of the earlier application”; 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”.

(iii)          The principles of issue estoppel did not apply to the Refugee Review Tribunal.  Anyway, they could not be applied to a particular finding of Mr Fordham, ignoring his ultimate determination.

(iv)          There was no validity in submissions that Ms Smidt was disentitled to proceed de novo because of considerations of delay and expense and Mr Sun’s mental condition.

(v)          Ms Smidt’s decision did not exhibit any error of law.

(vi)          Ms Smidt’s decision was not “induced or affected by ... actual bias”, within the meaning of s 476(1)(f) of the Act.

(vii)         This was not a “no evidence” case, within the meaning of s 476(1)(g) and s 476(4).

 

 

The submissions on appeal

In arguing Mr Sun’s appeal, Mr Lawler did not press all the grounds argued before Lindgren J.  He raised four major issues which he described in written submissions as follows:

 

“(a)        Whether a breach of s.420 of the Migration Act comes within the ground of review in s.476(1)(a) of the Act?

 

 (b)         Whether there was a breach of s.420 by the Smidt Tribunal constituted by a failure to act with fairness and in accordance with substantial justice.

 

 (c)         Whether there was an error of law within the meaning of s.476(1)(e)?

 

 (d)         Whether the decision of the Tribunal was induced or affected by actual bias (s.476(1)(f)?”

 

Depending on the resolution of those questions, it may be necessary for me also to consider the relief appropriate to be granted to the appellant.

I will deal separately with each of these issues.

Section 420 and s 476(1)(a)

It is a vexed issue whether the stipulations of s 420 of the Act constitute “procedures ... required by this Act” within the meaning of s 476(1)(a);  diverse views have been expressed by members of this Court.  The significance of the issue is that, if they do, a breach of a stipulation is a ground upon which application may be made for review of a Tribunal decision.  If such an application is successful, the Court may set aside or quash the decision and/or grant other relief:  see s 481(a) of the Act.

I do not propose to add to the plethora of opinions about the relationship between s 420 and s 476(1)(a).  The matter was recently considered by a Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.  By majority (Davies and Burchett JJ, Whitlam J dissenting) the Court decided s 420 did establish procedures to which s 476(1)(a) applied.  Counsel for the respondent, Mr A Robertson SC and  Mr N Williams, submitted Eshetu was wrongly decided and ought not be followed.  Without expressing an opinion on the merits of the conflicting judgments in Eshetu, I decline to accede to that submission.  I understand the case is presently the subject of an application for special leave to appeal to the High Court of Australia.  If leave is granted and the appeal succeeds, the situation will change.  In the meantime, as it cannot be said the result in Eshetu is “clearly wrong,” the decision in that case should be followed by other Full Courts:  see Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 592 and Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, 333 and 359-360.

The application of s 420:  principles

Two aspects of s 420 are relevant.  First, s 420(1) requires the Tribunal, in carrying out its statutory functions, “to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.  Second, under s 420(2)(b) it “must act according to substantial justice and the merits of the case”. 

In Eshetu at 624 Davies J said “(o)ne of the necessary elements of so acting is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits”.  But he went on to make the point that “substantial justice” involved more than fair procedures.  At 625 he quoted, but rejected, the view of the Eshetu trial Judge that the legislation was designed “to ensure that it is acceptable for a decision on refugee status to be made by a tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision maker could ever make it”.  Davies J said:  “The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the Administrative Decisions (Judicial Review) Act rules of its own”.  As he saw the situation, if there is an infringement of the requirements of the Migration Act, it does not matter whether or not this would be an infringement of the common law or a ground of review under the Administrative Decisions (Judicial Review) Act, absent s 476(2).  He said at 626:  “A breach of  the statute is not saved by s 476(2)”. 

Burchett J came to a similar conclusion:  see 633-642.  He said at 640 that “the actual language of s 420 ... being apt to raise a case under s 476(1)(a), there could be nothing in the intended effect of s 476(2)(a) to interfere with such a case”.

Section 476(2)(a) deals with natural justice.  By parity of reasoning, it is no answer to a complaint of failure to comply with s 420 that the failure resulted in a manifestly unreasonable decision.  The scheme of the legislation is to require the Court, in considering an application for judicial review of a decision of the Tribunal, to determine whether the applicant has made out any of the grounds specified in subs (1) of s 476; if so, it is not to the point that the circumstances were such that, absent subs (2), the decision would have been reviewable on the ground that it breached common law principles concerning natural justice or was manifestly unreasonable.

The application of s 420 in this case

Mr Lawler argues s 476(1)(a) applies to this case.  He says, in the Smidt inquiry, procedures required by the Act to be observed in connection with the making of the decision were not observed; Ms Smidt did not provide a mechanism of review that was fair and just (s 420(1)) and did not “act according to substantial justice” (s 420(2)(b)).  In relation to the first point, Mr Lawler complains of Ms Smidt’s decision to embark on a hearing de novo.  I have already indicated I do not accept that submission.  In relation to the second point, Mr Lawler raises many matters said to be a denial of substantial justice.  For example, he says:

            “The Smidt Tribunal’s finding that Mr Sun was concealing his true identity was apparently fatal to his entire claim.  Fairness and a requirement to do substantial justice demanded that, within reason, she undertake any investigations which might have resulted in:

 

            (a)        confirmation of the identity claimed by the Applicant

 

           (b)         contradicted or undermined an essential adverse hypothesis upon which the adverse finding on identity was reached.”

 

In connection with par (a), Mr Lawler mentions Ms Smidt’s failure to inquire at 159 Hai Zhu Road South, Guangzhou.  He says “if Mr Sun’s parents were spoken to they may have corroborated claims essential to his application for refugee status but rejected by the Tribunal (i.e. university entrance score; attendance at People’s University of China; visits by police post-4 June 1989)”.  He points out, as previously mentioned, that on 14 January 1995, Ms Le specifically asked that Ms Smidt request the Department or DFAT to ascertain whether Mr Sun’s parents still reside, or once resided, at that address.  On 5 February Ms Smidt declined that request.  Later she changed her mind and made a request.  However, she withdrew it when she was told Hai Zhu Road was divided into three sections, even though she knew the relevant section was “south”.

“Substantial justice”:  failure to inquire

I think there is substance in Mr Lawler’s submissions about Ms Smidt’s failure to make a proper investigation, but the failure extends beyond omission to inquire at 159 Hai Zhu Road South, Guangzhou.  Ms Smidt failed to obtain readily available information in respect of four matters:  confirmation of Mr Sun’s identity by an inquiry at 159 Hai Zhu Road South, Guangzhou; determination of what was meant by “recently” in respect of the Guangdong NCEE mark; determination of the question whether the photographs brought to Australia by Mr Sun were taken with a Chinese-made Hong Mei camera; and information about Australian visas issued in Papua New Guinea in 1993 to a person named Jegu Sun or Sun Jegu.  In my opinion these omissions rendered her decision manifestly unreasonable, within the principle explained by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.  It is now established that a failure by a decision maker to obtain important information, on a central issue for determination, that the decision maker knows to be readily available may result in the decision being branded an exercise of power so unreasonable that no reasonable person could so exercise the power:  see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169, Luu v Renevier (1989) 91 ALR 39 at 50 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290. Because of the exclusion effected by s 476(2)(b) of the Migration Act, the decision is not judicially-reviewable on the ground of manifest unreasonableness, but Eshetu establishes this circumstance does not exclude the application to it of any ground listed in s 476(1). It seems to me that, if the Tribunal’s treatment of the issues is so unreasonable that it must be said the decision could not have been made by a reasonable person, there has not been “substantial justice”.

This approach is consistent with the intention behind s 420(2)(b).  The Explanatory Memorandum for the 1994 Bill that introduced s 420 (then s 166C) into the Act explained that the term “substantial justice” was “used to emphasise that it is the issues raised by the case ... which should guide the RRT in making its decisions”.

“Substantial justice”:  misleading conduct

The failure of Ms Smidt to make an inquiry about 159 Hai Zhu Road South, Guangzhou, raises a further issue of substantial justice:  misleading conduct.  In this connection it is necessary to remember that discussion about the parents’ address initially arose out of the Chinese authorities’ refusal of Mr Sun’s 1994 passport application, on the ground they were unable to confirm his citizenship because the “address given on the passport application apparently does not exist”.  Mr Sun argued this claim was false and demonstrated the unwillingness of the PRC to extend protection to him.  That argument seems dubious; lack of energy and imagination seems a more likely explanation, but that is not a matter for the Court.  However, what is a matter for the Court is that Ms Smidt conducted her inquiry on the basis that the only significance of the address was whether it indicated the Chinese authorities were lying, but then used the address as the basis of a finding adverse to Mr Sun’s credibility.  In the section of her reasons relating to Mr Sun’s claims (at 21), Ms Smidt referred to the letter of 13 March 1996 from the Chinese Consulate advising about the three sections of Hai Zhu Road and the subsequent withdrawal of  her request that the Department or DFAT visit 159 Hai Zhu Road South.  She said:

 

            “This information was forwarded to Ms Le on 13 March 1996 and it was pointed out that this information indicated that the Chinese authorities had never been given a complete address for Mr Sun’s parents.  She and Mr Sun were asked to provide any comments they wished to make by close of business on 20 March 1996.  Ms Le wrote to the Tribunal on 24 March 1996, but made no comments on this issue.” [Emphasis added]

 

As this passage makes clear, the suggestion put by Ms Smidt to Ms Le was that the address was relevant in relation to the veracity of the Chinese authorities; at no stage did she suggest other relevance.   Yet at 64, in the section of her reasons headed “Assessment of Mr Sun’s claims and evidence”, Ms Smidt wrote that Mr Sun’s “insistence that he had provided the officials with complete details ... was a clear indication that he is prepared to distort or fabricate evidence given to the Tribunal”.  In fact Mr Sun had not provided any information about an address to the Chinese authorities; that information had come from a Departmental officer, Mr Browne.  However, the present point is that, so far as Ms Le was aware, Ms Smidt was using the problem about the address only as a reason for doubting the Chinese authorities had deliberately refused Mr Sun a passport.  It was one thing for Ms Le to decide not to press the request for a visit to the house if it was relevant only to that issue.  It would have been another thing for her not to press the request if it was to be used against Mr Sun’s general credibility.  Despite numerous requests by Ms Le to Ms Smidt to indicate all the matters troubling her about Mr Sun’s claim, Ms Smidt never suggested the problem over the address might be used for general adverse findings.  I think her conduct over this issue was misleading.

“Substantial justice”:  failure to consider relevant factors

There is another aspect of substantial justice.  In Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40, Mason J said:

 

            “... a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.”

 

In the present case there are at least two important facts to which Ms Smidt gave no weight:  Mr Sun’s possession of the negatives of photographs that appeared to show the events of 4 June 1989 at Tiananmen Square and his condition of post traumatic stress disorder.  Even considered cumulatively, these facts did not conclusively prove Mr Sun’s claim to have been at Tiananmen Square on 4 June 1989, but they strongly supported it.  If she had found facts inconsistent with that claim, Ms Smidt would have been entitled to refuse to draw the inference these facts would suggest, but substantial justice would still have required she take them into account.  Ms Smidt did not find facts inconsistent with the claim, she merely disbelieved it.  She did that without taking the two mentioned facts into account.  Because the photographs did not necessarily establish Mr Sun had been at Tiananmen Square, Ms Smidt disregarded them altogether, without considering their tendency to establish that he was.  She did not refer at all to the significance of Mr Sun suffering post traumatic stress disorder.

“Substantial justice”:  conclusion

In a number of respects Ms Smidt failed to comply with the requirement of s 420(2) that the Tribunal “act according to substantial justice and the merits of the case”.  Applying Eshetu, I hold this means that procedures required by the Act were not observed in connection with the making of the decision.  It follows the decision must be set aside.

This conclusion is enough to dispose of the case, subject only to consideration of the appropriate orders.  However, the conclusion depends on the application to the case of the majority decision in Eshetu.  As I said earlier, that decision is under challenge in the High Court and it is conceivable it may not stand.  In fairness to Mr Sun, under those circumstances I should address his other grounds of review.

Error of law

Section 476(1)(e) of the Migration Act provides as a ground of a judicially reviewable decision:

 “(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;”

Mr Lawler submits the Smidt Tribunal fell into an error of law similar to that which infected the Tribunal’s decision in Eshetu.  In that case at 633, Davies J commented on the failure of the Tribunal to form an opinion about certain claims made by the applicant for review.  He said this failure “discloses an error of approach due to a misunderstanding of the meaning and operation of the term ‘well founded fear’” and involved “an error of law, being an error involving an incorrect interpretation of the applicable law”.  At 642 Burchett J expressed agreement with Davies J on this issue.  He went on to point out the failures of the Eshetu Tribunal sufficiently to analyse the evidence.  Those failures are somewhat different from those of the Smidt Tribunal in the present case but the result is the same:  the failure to consider the cumulative effect of factors that tend to establish the applicant’s case (Mr Sun’s possession of the photographic negatives and his post traumatic stress disorder) is an approach that amounts to an error of law within the meaning of s 476(1)(e) of the Act.

This conclusion does not mean the Court is taking over the role of fact finder.  It is not.  The facts are for the Tribunal to determine but they must be determined with a proper appreciation of the legal principles governing decisions under the Act.  The relevant distinction may easily be understood if one considers the role of judge and jury in a jury trial.  The facts are for the jury to determine.  But it is for the judge to determine, as a matter of law, what evidence may be admitted at the trial and what inferences are open to be drawn from that evidence.  I mention as an illustration Jones v Dunkel (1959) 101 CLR 298, the leading case on the inference that may arise from a party’s failure to give evidence of facts within that party’s knowledge.  The High Court set aside a jury verdict for the defendant on the ground the direction given by the trial Judge was incomplete; he should have instructed the jury as to the inference available to be drawn.  Although the facts were for the jury to determine, and the High Court sent the case back for retrial by a jury, the trial had miscarried because of the trial Judge’s misdirection as to the available inferences.

Similarly, although the facts are for the Refugee Review Tribunal, a decision may be vitiated by a misconception by the Tribunal member of the available inferences.  That is this case.

I am of the opinion Ms Smidt fell into an error of law, being an incorrect interpretation of the applicable law.  On that ground, also, her decision must be set aside.

Actual bias

Paragraph (f) of s 476(1) makes it a ground of review “that the decision was induced or affected ... by actual bias”.  The provision of this ground is readily understandable.  A system of administrative law that immunised biased decisions from review would be incompatible with the rule of law and obviously unacceptable in a democratic country like Australia.  Yet it is unfortunate this ground is one of so few available grounds of review, apart from the s 420 grounds incorporated, according to Eshetu, by s 476(1).  If Eshetu is overruled, disappointed applicants will have no choice but to search amongst those few grounds for an arguable ground of review.  It will not be surprising if, in their disappointment at the Tribunal’s decision, many claim actual bias.  The result will be to substitute for an inquiry into the character of the decision an inquiry into the character of the decision maker.  Not only is such an inquiry invidious, it tends to miss the applicant’s grievance.  A person refused recognition of a claim to refugee status is unlikely to be consoled by a court ruling that the decision maker was not actually biased, although the decision was so aberrant as to amount to an unreasonable exercise of power.

The unreasonableness test is a demanding one that few applicants satisfy. A search of the decisions of this Court and the High Court reveals that, in the 20 years since the establishment of this Court, the ground of manifest unreasonableness, whether under the Administrative Decisions (Judicial Review) Act or at common law, has been upheld in only nine immigration cases.  It was argued in another 60 cases, but this is an average of only three cases per year, Australia-wide. It might have been better to allow that ground to remain, rather than to take a course that encourages disappointed applicants to attack the decision maker personally.

In the judgment under appeal, Lindgren J referred to the leading authorities on bias and some cases in this Court concerning s 476(1)(f).  He mentioned in particular the concept of bias adopted by Mason J in Re JRL; ex parte CLR (1986) 161 CLR 342.  That was a case of perceived bias, not actual bias, but the description at 352 remains relevant:  a disposition to “approach the issues in (the) case otherwise than with an impartial and unprejudiced mind”.  Lindgren J also mentioned The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248 in which (at 264) Barwick CJ, Gibbs J, Stephen J and Mason J pointed out it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested;  “as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory”.  This includes questions designed to elicit information or submissions.  Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions.  The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view.

Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (24 June 1996, unreported) that s 476(1)(f) requires an applicant to show “that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case”.  That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported).  He made three points.  First, the fact that a decision maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias.  There will be actual bias only when preliminary views are incapable of alteration.  Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing.  Third, it is not enough that the decision maker displayed irritation or impatience or even used sarcasm.

Mr Lawler accepted all these statements of principle.  He also accepted that a finding of actual bias should not be made lightly; cogent evidence is needed.  To apply the words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, the court “must feel an actual persuasion of its occurrence or existence ... It cannot be found as a result of a mere mechanised comparison of probabilities independently of any belief in its reality”. 

Nonetheless, Mr Lawler argued this was a case of actual bias.  He said that, more than once, Ms Smidt expressed her commitment to investigating Mr Sun’s claims as thoroughly as possible, yet she failed adequately to pursue inquiries that were available and obviously necessary.  Mr Lawler pointed out that, in her reasons for decision, Ms Smidt observed that the Handbook on Procedures and Criteria for Determining Refugee Status, published by the Office of the United Nations High Commissioner for Refugees, required a person determining a refugee application to “take into account the special circumstances of asylum seekers who may have problems with language or lack of familiarity with procedures and whose past experiences may make them apprehensive of authority”.  She went on:

 

            “The UNHCR Handbook notes that applicants will often not be able to provide documentary evidence to support their individual claims and advises that applicants who are unable to substantiate certain claims should generally be given the benefit of the doubt.”

 

Ms Smidt obviously had in mind par 196 of the Handbook which reads:

            “It is a general legal principle that the burden of proof lies on the person submitting a claim.  Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.  In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents.  Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof.  In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” [Emphasis added]

 

Mr Lawler points  to the emphasised part of this paragraph and argues that Ms Smidt must have been aware it applied in this case.  He says her unwillingness to follow through inquiries on such matters as the Guangdong NCEE score for 1988 and the address of Mr Sun’s parents shows she was not interested in eliciting information supportive of Mr Sun’s case; she was biased against him and interested only in facts that might discredit him and his story.  He also refers to Ms Smidt’s insistence on a hearing de novo and the statement made in Mr Smith’s letter to the Document Examination Unit of the Department of 20 October 1995 that Ms Smidt “has reason to question whether (Mr Sun) attended any demonstrations or was present in Tiananmen Square on 3 June 1989”.

In the course of his oral argument, Mr Lawler took us through the whole course of proceedings before the Smidt Tribunal.  His purpose was to demonstrate an unwillingness to investigate the claim in an open-minded way.  It would be tedious to detail the points made; many of them have considerable force.  As I have indicated, I reject counsel’s criticism of Ms Smidt for starting de novo.  The passage in Mr Smith’s letter is worrying, but two observations may be made.  First, the letter recorded Mr Smith’s understanding of Ms Smidt’s state of mind; his understanding might have been wrong.  Second, the statement was that Ms Smidt “has reason to question” Mr Sun’s attendance at Tiananmen Square.  It is not apparent to me what her reason might have been, at that early stage of her inquiry.  But the language is not necessarily inconsistent with a willingness to be persuaded if the question produced evidence in Mr Sun’s favour. I am critical of Ms Smidt’s failure to follow through obvious lines of inquiry, particularly those requested by Ms Le.  However, as it is not necessary to reach a conclusion about actual bias, I prefer not to express an opinion about whether this stemmed from bias, as distinct from incompetence.  I leave open the issue of bias.

Disposition of the case

Mr Lawler submitted that, if the application succeeded, the Court ought not remit the matter to the Tribunal for a further hearing, but finally dispose of the case by making a declaration as to Mr Sun’s status as a refugee.  This was done by a Full Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421.  But the decision to take that course was not unanimous; Beaumont J would have referred the matter back to the Tribunal.  And, importantly, the High Court agreed with him.  In a joint judgment (at 144 ALR 582) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ first criticised the form of the declaration and then made a more fundamental point:

 

            “Moreover, a declaration, even if drawn in specific terms, should not have been made.  The Tribunal was empowered by s 166BC(1) of the Act to exercise all the powers and discretions conferred upon the primary decision-maker.  The Act provided (s 22AA) for determination by the Minister that a person was a refugee, but this power was exercisable upon the Minister being satisfied that a person had that status or character.  The rights of the appellants to the issue of visas, which the Full Court purported to declare with present effect, would only arise upon satisfaction of statutory conditions including the determination by the Minister under s 22AA or by the Tribunal under s 166BC.

 

            In those circumstances, the appropriate course would have been for the Full Court to set aside the orders of Sackville J and to return the matter to the Tribunal for determination in accordance with law.”

 

Mr Lawler accepts the Court cannot declare Mr Sun is entitled to the grant of a protection visa, because that entitlement depends on the Minister being satisfied of matters (relating to health and national security) other than refugee status.  But he contends the Court can, and should, declare Mr Sun has the status of a refugee under the Convention.  He says, if the Court accepts the view that Ms Smidt ought to have adopted Mr Fordham’s findings, there are no unresolved matters of fact.

I cannot accept this analysis, even on the assumption (which I reject) that Ms Smidt was bound to adopt Mr Fordham’s finding of the existence of a fear of persecution.  Making allowance only for subsequent variations in the section numbers of the Act, it seems to me the quoted passage from the joint judgment in Guo exactly applies to this case.  For there to be a determination that Mr Sun is a refugee, there must be a finding, by the Minister (or his delegate) or the Tribunal, that he is a person falling within the definition contained in Article 1 of the Convention.  This must include a finding that he has a well founded fear of persecution.  Not even Mr Fordham went that far; he thought the fear (which he found) was not well founded.  If, as I believe, Ms Smidt was entitled to start de novo, there is not even an extant finding of fear of persecution.  The Court has no power to make such a finding, which necessarily involves conclusions about the facts of the case.  Although the prospect of a fourth Tribunal hearing is extremely unattractive, the Court has no option but to order the matter be remitted to the Tribunal for that purpose.

There is an alternative to a fourth hearing taking place:  a decision by the Minister under s 417 of the Act to substitute for the Tribunal’s decision a decision more favourable to Mr Sun.  In an address given to the Australian Institute of Administrative Law on 30 October 1997, the present Minister, the Honourable Philip Ruddock MP, emphasised the importance of s 417.  He noted the relative cheapness of this method of disposition of contentious cases, compared with litigation.   He added:  “I am also able to address the full merits of the particular case ... a far wider power than the role of the courts in judicial review”.  These comments are obviously sound and they cause me to suggest this might be a case where it is appropriate to exercise the s 417 power.  Certainty is impossible to attain, but the material before us establishes the likelihood that Mr Sun was involved in the pro-democracy demonstrations in Beijing in 1989 and this caused (or substantially contributed to) his post traumatic stress disorder and severe depression.  It is clear he has a real fear of being returned involuntarily to China.  Whatever might be Mr Sun’s actual fate if he were returned, in all the circumstances it would seem an act of simple humanity to allow him to stay in Australia.  The events of 4 June 1989 caused a former government to permit some 20,000 Chinese students, all of whom were in Australia that day and not at Tiananmen Square, to remain in this country.  Mr Ruddock might think it would be incongruous to insist on the departure of one who probably was there, and still suffers as a result.

I certify that this and the preceding fifty-seven (57) pages

are a true copy  of the Reasons for Judgment herein of Justice Wilcox.

Associate:

Date:                23 December 1997

Counsel for the Appellant:                     M Lawler

Solicitor for the Appellant:                     Jackson Smith

Counsel for the Respondent:                 A Robertson SC and N J Williams

Solicitor for the Respondent:                 Australian Government Solicitor

Date of Hearing:                                   18 and 19 September 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 398 of 1997

 

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

 

 

BETWEEN:	SUN ZHAN QUI Appellant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

 

 

judges:	WILCOX, BURCHETT AND NORTH JJ
DATE:	23 December 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

 

BURCHETT J

I have had the great advantage of reading in draft the reasons for judgment of Wilcox J with which, subject to these reasons, I agree.  His Honour’s detailed statement of the issues and the circumstances in which they arise makes it unnecessary for me to do other than come straight to those questions on which I wish to add something for myself.

Some of the submissions on which the appellant relied depended on the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300.  In that matter, Davies J and I composed the majority.  It is appropriate that I should say I remain of the view which I expressed in my reasons in that case.  Indeed, I am confirmed in that view by the endorsement it has since received from Lockhart J in Khan v Minister for Immigration and Multicultural Affairs (unreported, 4 August 1997 at 7) and Finkelstein J in Thambythurai v Minister for Immigration and Multicultural Affairs (unreported, 16 September 1997).  Finkelstein J examined and rejected an argument urged against the construction of the statute adopted in Eshetu which had not been elaborated in the argument in the earlier case. 

Relevantly for the present matter, what Eshetu decided was, as Davies J put it at 304, that “[o]ne of the necessary elements of  [‘act[ing] according to substantial justice and the merits of the case’, as required by s 420(2)(b) of the Migration Act 1958] is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits.”  His Honour held (at 305-306) that a breach of this requirement would provide a ground for setting the decision aside.  I made it clear (at 317) that I took the same view, and also that such a breach would not only involve a failure to observe procedures required by the Act within s 476(1)(a), but also would involve an error of law falling within s 476(1)(e).

One of the rights conferred on a person by the rules of natural justice is the right to have a decision made by an unbiased or disinterested decision maker.  I pointed out in Eshetu at 317 that, when Parliament decided to replace the principle of natural justice, in immigration cases, with a series of statutory requirements, the rules in which that principle is expressed were given statutory effect severally by a group of sections, ss 420, 425 and 476(1)(f).  Section 476(1)(f) presents a striking illustration of the fact that it cannot have been intended by s 476(2) to exclude the substance of the principle of natural justice from immigration hearings, since that part of the principle which takes the form of the rule against bias is expressly reflected in the ground contained in s 476(1)(f); the other rules, being procedural, fall within s 476(1)(a).  In the present case, the Court is concerned with s 476(1)(f), by which it is made a ground of review “that the decision was induced or affected by fraud or by actual bias”.  The appellant says that the decision of the Refugee Review Tribunal was affected by actual bias.

It should be noted that the appellant does not rely on the doctrine of apprehended bias:  cf Bilgin v Minister for Immigration and Multicultural Affairs (Finkelstein J, unreported, 6 October 1997).

Actual bias, like any other conclusion of fact, may be established as an inference from circumstances.  On this basis, the appellant relies on various aspects of the Tribunal’s decision as explicable only,  or at least most naturally, by bias.  When the Court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense.  The use of the word  “actual” strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.  The cases use expressions such as “real likelihood of bias” in a sense designed to ensure “that it is not necessary that actual bias should be proved”:  Reg v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers’ Association [1960] 2 QB 167 at 187, per Devlin LJ.  In Australia, “real likelihood” has itself been abandoned in favour of an even more special test, based on the principle that justice should be undoubtedly seen to be done, of “whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case”:  Webb v The Queen (1994) 181 CLR 41 at 47; Gaisford v Hunt (1996) 71 FCR 187.  The doctrine that has been developed, however it is stated, is commonly called the rule of apprehended bias.  In my opinion, the statute, when it used Devlin LJ’s expression “actual bias”, substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially.  I say “at least in some respect” because the statute extends to the situation where “the decision was ... affected ... by actual bias”.  The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind.  Bias may be subconscious, provided it is real.  Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach.  It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.

A notable feature of the Tribunal’s reasons is the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds.  Some of these conclusions involve the rejection of evidence which Mr Fordham had accepted after rigorous, even sceptical, oral examination of the appellant.  The principles stated in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 are not only principles which it is an error of law to disregard; they also involve, at least in some measure, considerations of the plainest common sense.  An unbiased tribunal, although free to re-examine the matter for itself, could have been expected, in the circumstances of this case, to have given some weight to Mr Fordham’s acceptance of the appellant.  The Tribunal paid no regard to it, while giving great weight to adverse matters that plainly were not conclusive. 

The appellant did not wish to give further oral evidence before the Tribunal; instead, written material was proffered and he presented the evidence of a clinical psychologist, Dr B A Stevens, who, in August 1995, concluded that he was in “a severe condition” of post traumatic stress disorder, with indications, on psychological testing, to support a diagnosis “in the highest range of very severe depression”.  Dr Stevens concluded that he was “very distressed and in an apparently deteriorating condition.  He clearly meets the criteria for Post Traumatic Stress Disorder and a Major Depressive Disorder”, and recommended “immediate treatment for the depression”.  There was no evidence that this deterioration had been arrested prior to the hearing.  On the contrary, a memorandum dated 1 April 1996 recording the concerns of the Compliance Section of the Department about the “state of mind” of the appellant, who had recently threatened suicide, suggests there was only reason for further concern.  It might have been thought that the evidence of Dr Stevens and this memorandum clearly justified the appellant’s claimed inability to undergo anything in the nature of cross-examination.  It might also have been thought that the diagnosis was in itself supportive in some degree of his claims.  But the Tribunal’s reaction, although there was no contrary expert evidence, and although the member said she accepted Dr Stevens, was simply to conclude:

“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.”

In Bushell v Repatriation Commission (1992) 175 CLR 408 at 430, Brennan J said:

“[T]he decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner ... .  It does not appear that that was the approach taken by the A.A.T. in this case where a ‘layman’ purported to decide ‘disputed matters between well-respected physicians’.”

See also Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 522.  But here, there was not even any dispute about the expert view.  It is difficult to understand how, accepting Dr Stevens, the Tribunal member could have concluded that the appellant’s problems had not significantly hampered him.  She put forward the fact that he had been able to write two “completely coherent letters written in excellent English” as supporting her conclusion.  But, while making that dubious use against him of the intellectual capacity the appellant had demonstrated, she did not draw the obvious conclusion in his favour that this capacity was quite consistent with his claim to have been admitted to the University at Beijing. 

The Tribunal’s examination of that part of the appellant’s evidence which referred to his activities as a student at the University at Beijing is revealing.  He is plainly of appropriate age, intelligence and stated background to have been a university student at the time he says he was.  His knowledge of written English suggests good education.  Nothing in the Tribunal’s reasons raises any basis for a doubt concerning his attendance at university, except some general information obtained as a result of a number of Tribunal enquiries about the marking system for university entrance examinations in China.  That information, standing alone, could not possibly have been regarded by a fair minded person as contradicting the appellant’s account.  He had said that he had obtained an entry mark of 819 out of 900 (91%) in 1988.  A general statement had been made by the Chinese consulate in Sydney that in 1988 the total mark obtainable in China was 710 in science subjects and 640 in liberal arts, but the Tribunal also had official Australian information from the National Office of Overseas Skills Recognition that, “[w]hile the examinations are national, the methods of calculating scores can vary from province to province”, and that “recently” in Guangdong province students “have been graded out of 900”.  That in a country of the size and diversity of China the methods of calculating scores “can vary from province to province” is not a proposition admitting of doubt.  When it is known that in the very province from which a Cantonese speaker would be likely to come, and from which the appellant claimed to come, papers have, at least at some stage, been graded out of 900, and when the appellant’s claimed background and observable age and intelligence are consistent with his having passed out of school in 1988 with high grades, it is impossible to see how the information to which I have referred could raise any serious adverse inference at all.  If there had been a doubt, it could very easily have been cleared up.  But the Tribunal chose to conclude:

“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.”

And later:

“From the evidence, it appears that he did not enter the People’s University of China in 1988.”

In the course of reasoning to this result, the Tribunal said:  “[T]here is nothing to suggest that those seeking entry into the People’s University of China in 1988 were assessed out of a total score of 900 points”.  There was nothing definite to the contrary, and there was the appellant’s insistence on what his score was in Guangdong.  The Tribunal’s attitude seems to have been that a general statement from the Chinese consulate, known to be subject to “province-by-province differences”, was to be taken absolutely against the appellant, while only proof in definite terms could even “suggest” that his version might be acceptable.

The Tribunal then turned to the appellant’s accounts of his involvement in the demonstrations and activities that led up to the tragic events which are associated with Tiananmen Square.  In those events, he claimed to have played a relatively minor part (he was in first year) as a class organizer.  That he might have been a class organizer is confirmed by the psychological evidence which records that, even when suffering serious psychological illness and in custody, he had “taken an active role in setting up the Centre Liaison Committee and he is usually responsible for drafting the letters in English”. That he might, as he claims, have taken photographs of the demonstrations is consistent with the history he gave the psychologist of an interest in photography from childhood, and receives strong confirmation from his possession of subversive negatives (from the Chinese viewpoint) which an uninvolved person could not easily have obtained.  That he was indeed involved in some very traumatic incident is confirmed by the unchallenged diagnosis of a severe condition of post traumatic stress disorder.  That nothing in his account of the events in itself casts doubt upon his involvement in them is confirmed by the acceptance of that account by an obviously far from credulous Mr Fordham, who heard him when he gave it.

Despite these matters, the Tribunal decided that “Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement”.  That conclusion appears to have been based almost entirely on the Tribunal’s disbelief of his statement that he was a university student at the People’s University in Beijing in 1988 and on the Tribunal’s view that his account of the events was “significantly at odds with the eyewitness accounts before the Tribunal”.  In addition, the Tribunal suggested that the appellant’s account was “lacking in the kind of details generally remembered by participants in events of such significance and inconsistent with other accounts of the period.”  It is unnecessary for me to repeat the full and careful analysis that Wilcox J has made of the particular accounts to which the Tribunal referred.  It is sufficient to say that a fair reading of those accounts, as is made quite clear by the reasons of Wilcox J, reveals nothing that comes anywhere near a justification of the Tribunal’s conclusions.  The appellant did not set out to give an historical account.  He was not a detached observer.  He described his own participation in extremely tumultuous and ultimately tragic events in which very large numbers of people were involved.  To fasten upon apparent inconsistencies between the perceptions of one individual, among hundreds of thousands, and the overview obtained by a subsequent chronicler synthesising numerous, and undoubtedly often differing, accounts is really quite absurd.  The Tribunal does not point to a single discrepancy which is not readily explicable.  But the fundamental point is that any fair minded Tribunal would not have refrained from according a full acknowledgment to the necessarily partial nature of one participant’s personal impressions of these tremendous events.  It may be, as the proverb says, that “truth is the daughter of time”, and that the reflective historian may obtain a more complete picture, but the individual caught up in the maelstrom could not have seen that picture.  His recollections are peculiarly his own.

While it was nothing less than extraordinary to hold it against the appellant that he saw things as beginning where they began for him, and as having the character of that part of the complex whole in which he was engaged, there was an extremely important confirmation of the appellant’s involvement available to the Tribunal.  This was his possession of a large number of photographs, including negatives, which beyond all doubt were taken by someone very close indeed to the climax on Tiananmen Square.  The Tribunal itself excluded the possibility that these were press photographs.  Plainly, in the aftermath of the violent suppression of the demonstrations, whoever did take the photographs would have had strong reason to keep them and the negatives safely out of sight.  Indeed, one might think that, if they were passed on to someone else, a probable recipient would be someone also involved in the events.  The appellant claimed to have taken the photographs, and he specified the make of camera used, which he would be unlikely to have known if he had acquired the negatives by theft or on some clandestine black market (of which there is no evidence).  If he did not know, he took a remarkable risk.  There is in fact no suggestion that this particular make of camera could not have taken those photographs.  Consistently with his claim to have taken them, the appellant told the psychologist, when recounting his childhood, that he had been interested in photography.  Yet the Tribunal dismisses the matter of the appellant’s possession of the photographs and negatives in these curt terms:

“The fact that Mr Sun carried these photographs with him when he came to Australia does not necessarily mean that he took them or that he was present when they were taken.  There is nothing in the photographs themselves which proves that Mr Sun was an active participant in the 1989 demonstrations, nor that he took them or that he was present when they were taken.”

It is a very big leap from saying that the appellant’s possession of the photographs does not necessarily mean that he took them to the conclusion that his possession of the negatives should be ignored.  But the Tribunal member gave no indication that she asked herself seriously how she could reconcile the appellant’s possession of those photographs and the negatives with her finding that he was not an active participant in the 1989 pro-democracy movement.  She could deny his involvement on grounds that were at best inconclusive, but dismiss evidence in his favour because it was not, in itself, conclusive.  And that without pausing to consider the cumulative weight of a number of indications all pointing in some way, if not in any one case necessarily, to the truth of his claim.

A separate issue argued by the appellant’s migration agent arose out of the refusal of the Chinese Embassy to issue a passport to him on an application made following his initial failure to be granted refugee status.  The argument was that the ground of that refusal was false, and that the appellant’s unacceptability to China was confirmed, so that there was a real chance of persecution if he was forced to return.  The ground stated by the embassy is recorded in a departmental note as being “that they are not able to confirm [the appellant’s] citizenship.  The name and address given ... apparently does not exist.”  As to that, the address in question was:

“159 Hai Zhu Rd.,

Guangzhou”;

and the appellant had the good fortune of being able to obtain, through a chance contact of his advisers, a Guangzhou street map and some photographs showing that Hai Zhu Road Guangzhou did in fact exist, being a main road, and that it contained a house numbered 159 Hai Zhu Road South.  Hai Zhu Road, it was then confirmed by the Australian Consulate in Guangzhou, was “similar to many long streets in large Chinese cities” in being divided into three sections - north, middle and south.  As this was not uncommon, it is extremely difficult to believe that the Chinese authorities, or anybody else, would really be confused by the address “159 Hai Zhu Rd., Guangzhou”.

Whether or not this material should have led the Tribunal to accept the submission put on behalf of the appellant, it certainly supported an argument that the Chinese embassy had been less than welcoming of the appellant’s application for a passport, and more than a little disingenuous, when it claimed the “address given ... apparently does not exist”.  Nevertheless, the Tribunal might properly have concluded that incompetence or other factors provided alternative explanations which it should favour over the proposition advanced by the appellant’s solicitor.  If it had done that, nothing relevant to the argument of bias could have been suggested in respect of this matter.  But what the Tribunal member in fact did was to make the following series of findings:

1          “At the second Tribunal hearing, Mr Sun said that he had provided the Chinese authorities with all the information they needed to issue him a passport.”

2          When Mr Sun’s solicitor “forwarded four photographs of the building at 159 Hai Zhu South Rd and a map of Guangzhou with Hai Zhu Road marked”, he sent “an accompanying letter [in which] he stated that the street is a main road and is broken into three parts but ‘the street numbers run consecutively for the whole length of the street’.  Mr Jackson [the solicitor] submitted that these photographs indicate that the claim by the Chinese officials that Hai Zhou St [sic] does not exist is a deliberate falsehood.  Mr Jackson added that he has been involved in the cases of some [other Chinese] and the level of information required for the issuing of travel documents in these cases was less than that required of Mr Sun.”

3          The appellant’s migration agent asked the Tribunal to investigate through Australian officials in Guangzhou “whether Mr Sun’s parents still reside, or once resided at 159 Hai Zhu Road.”  After initially refusing, the Tribunal “decided to ask the Australian Consulate in Guangzhou if they could undertake this research.  I advised Ms Le [the agent] of this and also pointed out that even if Mr Sun[‘s] parents were located at the address in question, this did not necessarily mean that the Chinese authorities had refused to grant him a passport for political reasons.  In a letter dated 1 March 1996 Ms Le asked that finalisation of Mr Sun’s case not be delayed any further.  On 13 March 1996 the Consulate advised that the three sections of Hai Zhu Road are numbered independently.  I withdrew the request that they visit 159 Hai Zhu South Road.”

On the basis of these findings, the Tribunal felt able to conclude:

“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 [sic] 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 [sic] a clear indication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status.”

That such an extreme conclusion should be drawn on this material is astonishing.  If error there was with regard to the numbers in Hai Zhu Road, it was in a document prepared by solicitors on behalf of the appellant, following the obtaining of evidence from an independent person about Hai Zhu Road in general and number 159 in particular, the very existence of which had previously been disputed.  The error may not have been attributable to the appellant personally.  But if it came from his personal instructions, the difficulty of obtaining precise instructions from a client who was psychologically ill and in custody, and the lapse of a number of years since the appellant had lived at home, would have to be taken into account by any fair minded person.  Indeed, the numbering system may have changed over the years, just as it turned out on proper checking the examination marking system changed.  A simple mistake by one of several persons, including the independent source of information, is perfectly possible.  But here is the Tribunal member, when the substantial question raised (whether the address existed) has been answered in favour of the appellant as a result of chance evidence coming to hand, seizing upon a relatively minute detail to find “a clear indication that [the appellant] is prepared to distort or fabricate evidence ... to advance his claim for refugee status”. 

Two further comments may be made.  The argument put forward by the appellant’s solicitor had been presented without any concealment of the fact that the road was broken into three sections.  He pointed this out.  He also pointed out that the Chinese characters identifying 159 Hai Zhu Road (which means Sea Pearl Road) included a character meaning “South”.  The second matter is that the relevant findings which I have set out include what appears to be intended as an explanation of the Tribunal member’s withdrawal of the request to the Australian Consulate in Guangzhou to verify the residence of Mr Sun’s parents at 159 Hai Zhu South Road.  The explanation put forward is that the appellant’s agent “asked that finalisation of Mr Sun’s case not be delayed any further”.  This statement seriously misrepresents the agent’s letter.  She in fact wrote reminding the Tribunal of the appellant’s condition of depression and of the Tribunal’s statutory duty of fair and quick review.  She pointed out there had been significant delay and stated that about a “month ago Mr Sun appeared deeply depressed to the point where suicide became a concern that I genuinely held” (as I have indicated, those having custody of him appeared to share this concern).  In that context, she wrote:

“In my submission the Tribunal should proceed immediately to make its decision and assume that the outcome of the enquiries was positive to Mr Sun.”

There was no suggestion that the Tribunal, having been given a photograph of the appellant’s parents’ home, was being invited to abort investigation of that home and find, as the Tribunal member did, “I am unable to determine his identity”.  On the contrary, the Tribunal member was being invited to accept the evidence already proffered which, on the face of it, raised no reasonable doubt at least on that score.

Before leaving the Tribunal member’s conclusion about 159 Hai Zhu Street, I should note that she also refers to the appellant’s “insistence that he had provided the officials with complete details” for the purpose of the issue of the passport.  This “insistence” is not identified in the findings.  What is there stated is that he “said that he had provided the Chinese authorities with all the information they needed to issue him a passport.”  That he had not provided “complete details” was never in issue.  What was urged on his behalf about that was that some details might harm others who had sheltered him when in hiding, and might cause problems for his parents.

Not only did the Tribunal member conclude, without even suggesting any other justification than that which I have been discussing, that the appellant was “prepared to distort or fabricate evidence”; she also used highly coloured language in rejecting other claims made by him.  She said:

“I find that Mr Sun has greatly exaggerated, and possibly fabricated, his claims regarding his participation [in the pro-democracy movement] in 1989.”

Despite that use of the word “possibly”, she later referred to “the overall pattern of fabrication, exaggeration and conceal[ment]”.  Apart from this escalation of disbelief of a claim to a positive finding of fabrication, these references to exaggeration are impossible to match with the tenor of the appellant’s evidence.  Far from exaggerating his role, he described it as what one would expect of a first year class organizer.  He passed on instructions to his class.  He described himself as “a lower level of organizer”.  When the students were demonstrating over a period of about a month, he said he took some who fainted to the hospital, and obtained food, mentioning a particular teacher by name who was one of those who fainted.  He described being grabbed by the police and being put on a bus back to the university on the occasion of one demonstration; but, asked whether on any other occasion the police physically took hold of him, he said they had not.  Nothing in his account of the demonstrations or of his activities, when compared with the known accounts of those demonstrations, reads as in any way exaggerated.

I accept that, just as the Tribunal member should not lightly have drawn the conclusion that the appellant had fabricated the account which had been accepted as true by another Tribunal member with the advantage of actually hearing it, so also the Court should not lightly make a finding of actual bias.  But the ground of bias has been made available by Parliament as a protection for individuals, and it would be no protection if the Court shrank from giving effect to it in a proper case.  When the accumulated matters I have discussed are taken into account, this must be seen as a proper case.  It is more than a matter of Wednesbury unreasonableness, which is not in itself an available ground.  Errors occur, but to err so many times and in such ways, and each time against the appellant, argues overwhelmingly for the conclusion that the Tribunal member proceeded to consider the case from a preconceived opinion and a fixed position so adverse to him that he could not obtain a fair hearing.  In my opinion, that situation fell within the provision of s 476(1(f): the decision was affected by actual bias.

In case I should be wrong in reaching this conclusion, I have considered the same aspects of the decision from a different point of view.  A decision may sometimes, by virtue of extreme disparity between it and the material on which it is based, or for some other reason, give a clear indication that it is based on some error or errors of law, even though no particular error is identifiable in the reasons of the decision maker.  Davies J referred to this matter in Eshetu at 307.  If the conclusion of actual bias should not be drawn, then I would conclude, upon the material to which I have referred, that the Tribunal member erred in law so as to misunderstand the true nature of her task.  On that basis, the appeal would succeed under s 476(1)(e), which is expressed to apply “whether or not the error appears on the record of the decision”.

I agree with the orders proposed by Wilcox J, and I also wish to associate myself with his final remarks about the future of this unusual and unfortunate case.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated:  23 December 1997     

 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG398 of 1997

 

BETWEEN	SUN ZHAN QUI Applicant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

 

JUDGE(S):	WILCOX, BURCHETT AND NORTH JJ
DATE:	23 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

NORTH J:  I would allow this appeal on the ground that the decision of the Refugee Review Tribunal was affected by actual bias within the meaning of s 476(1)(f) of the Migration Act 1958. I adopt the comprehensive analysis of the facts made in the judgment of Wilcox J. Although his analysis is primarily, but not exclusively, directed to the arguments concerning s 420(2)(b), they apply equally to the case put by the appellant under s 476(1)(f). In my view, the analysis which leads to the conclusion that the Tribunal failed to comply with s 420(2)(b) equally leads to the conclusion in this case that the decision was affected by actual bias. This conclusion flows from an assessment of both the process of investigation of the appellant’s claim made by the Tribunal and also of the reasons for decision of the Tribunal. I desire to add some short observations about actual bias.

Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: Wannakuwattewa v Minister for Immigration & Ethnic Affairs (North J, 24 June 1996, unreported) and Sarbjit Singh v Minister for Immigration & Ethnic Affairs (Lockhart J, 18 October 1996, unreported). The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove. Rarely will the judicial officer expressly reveal actual bias. However, several New Zealand licensing cases do provide some examples of express actual bias. For instance, in Isitt v Quill (1893) 11 NZLR 224, the decision of a Licensing Committee to refuse to renew certain licences was overturned because the Committee members had made pledges in their election campaign to refuse all licences. See also the judgment of Stout CJ in Re O’Driscoll; Ex parte Frethey (1902) 21 NZLR 317. Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances. Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 is the only case which I have been able to find which has been determined by a finding of actual bias based on an inference from the surrounding facts and circumstances. The case bears some similarities to the present case. Gooliah came from Trinidad to study in Canada. The entry certificate permitted him to attend a specific course in electrical training at the Manitoba Institute of Technology. Having failed in the first year, he entered into a pre-apprenticeship trial, which was an alternative way to commence an electrical qualification. Gooliah claimed to have had the permission of the Immigration Branch to enter the pre-apprenticeship trial. The Immigration Branch denied this and, hence, an inquiry was instituted. The inquiry resulted in a deportation order being made against him. The trial judge concluded that the inquiry was tainted by actual bias. In the Manitoba Court of Appeal, Freedman JA, with whom Guy JA agreed, upheld the decision of the trial judge. Just as in the present case, there were many aspects of the inquiry which led Freedman JA to conclude, at 233, that “the Special Inquiry Officer apparently approached the matter with a mind made up” and, at 234:

“[t]he performance of the Special Inquiry Officer on this matter was not that of one engaged in an objective search for truth. Rather it appeared to be an attempt to find justification or support for a point of view to which, in advance of the relevant testimony, he was already firmly committed.”

Further, actual bias was demonstrated by the hostile attitude towards the applicant’s case throughout the inquiry.

Gooliah demonstrates that proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

Gooliah also demonstrates that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant. Guy JA said, at 238:

“I am not prepared to impute any animated bias to the Special Inquiry Officer, Mr A E Brooks, but it is quite apparent that his function as an officer of the Department of Immigration in Winnipeg did indeed colour his approach to the inquiry to the extent that it showed some measure of prejudgment or prejudice.”

A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation. Indeed, a characteristic of prejudice is the lack of recognition by the holder. Some judges, including myself, who have in recent years attended gender and race awareness programmes, have been struck by the unrecognised nature of the baggage which we carry on such issues. Decisions made upon assumptions or prejudgments concerning race or gender have been made by many well-meaning judges, unaware of the assumptions or preconceptions which, in fact, governed their decision-making. Thus, actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes, and says, that they have not prejudged a case.

Once it is appreciated that actual bias may exist, even if unintended, any special reticence in pursuing such a case should be diminished. I think such reticence has existed in the past, partly because of the failure to understand the true nature of the allegation. For instance, Coles JA in Mohamad Awad Ramadan v NSW Insurance Ministerial Corporation (NSW Court of Appeal, 7 April 1995, unreported) said:

“An allegation of actual bias requires an appellate court if it is to uphold the allegation, to make a finding that the trial judge was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.”

Certainly, in the case of unintended prejudgment, this view goes too far. If a court finds that a judge or other judicial officer has made a decision affected by actual bias, then the judge or judicial officer has made an error in the same way that other appellable errors are made. There is no more impropriety, misconduct, or breach of judicial oath in making such an error than in making other errors found on appeal. Unintended actual bias is no special category of error. Thus, when there are grounds for alleging that a decision, reviewable under s 476 of the Migration Act, was affected by actual bias, applicants and their advisers should not feel restricted by the nature of the complaint from pursuing that ground. The faith of the community in a fair and just system of decision-making depends on the ground of review provided in s 476(1)(f) of the Act being available in a real and practical way, and not so limited by apparent barriers that it is not a form of practical recourse. This is particularly important in the case of the immigration review system. In December 1994, the Parliamentary Joint Standing Committee on Migration reported on concerns about the politicisation of the process of appointment to the Immigration Review Tribunal. The report reflected concern about the quality of decision-making by the Immigration Review Tribunal. Where there is controversy about possible partiality of tribunal members, it is especially important that the scope of review by the Court on the ground of actual bias is genuinely available. I should add one note of caution. It is an unfortunate characteristic of the jurisdiction of the Court under s 476 that applicants too often file applications and subsequent contentions which make broad allegations of error under s 476 but do not provide details of the alleged errors. Too often, at the hearing this results in very weak arguments being lamely pursued or, perhaps, abandoned. It is important to emphasise that, just like any other allegation of error, allegation of actual bias should only be made if the basis for the allegation exists.

I turn now to the appellant’s arguments based on s 420. Prior to Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, I expressed the view that the provisions of s 420 are not “procedures .... required by this Act” within the meaning of s 476(1)(a). I remain of that view. The reasons of the trial judge on this aspect fortify me in that view. There have been many decisions on the issue in recent times. There is almost an equal number of decisions on each side of the argument. There is, therefore, an overriding need for an authoritative decision. It will be provided if the High Court grants special leave to appeal in Eshetu. If not, the authority may need to be provided by a special bench of five or more judges of this Court. In the meantime, the question is what approach a Full Court should take to the majority view in Eshetu if it disagrees with that view. While the Court is not bound by its previous decisions, it will normally follow an earlier decision unless convinced it is wrong: Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, 333 and 359-360. By requiring a conviction that a decision is wrong, the principle seems to exclude mere disagreement with the earlier decision. The disagreement must be of such a degree that the later Full Court regards the reasoning of the former as not only at odds with its own view, but based, at best, on weak grounds. But, as the reasons of the Chief Justice in Byrne, at 304, show, the issue is broader than merely a consideration of the correctness of the earlier decision. In Byrne, for instance, in determining to reconsider an earlier Full Court decision, the Chief Justice took into account whether the earlier decision was unanimous, and whether it was the result of a principle worked out over a series of cases or, rather, whether it was merely a starting point. In the end, the principle seeks to provide a basis to resolve the conflict between the need for certainty in the law, on the one hand, and the need for the law to provide the “right” answer as it appears to the judges deciding the individual case, on the other.

The fact that the majority decision in Eshetu is recent, that it is not founded on any principle developed over a series of cases, that there is an unusually high number of recent single judge decisions which take a different view, and that there was a strong dissent by Whitlam J in Eshetu itself, make it appropriate for this Full Court to reconsider the decision in Eshetu concerning s 420. In my view, the reasoning of the majority is not sufficiently compelling to justify that the demands of certainty in the law overcome the needs of the judicial system to provide the “right” answer. I would, therefore, hold that this Full Court should reconsider Eshetu and determine that it was wrongly decided on the s 420 issue. In the result, I would reject the appellant’s argument that a breach of the provisions of s 420 allows a review under s 476(1)(a). However, if I am wrong about the construction of s 476(1)(a), then I agree with Wilcox and Burchett JJ that, on the facts of this case, the Tribunal clearly failed to accord substantial justice to the appellant.

I agree with Wilcox and Burchett JJ, for the reasons which they give, that the Tribunal fell into error within the terms of s 476(1)(e) and I would also allow the appeal on this ground.

Finally, I wish to refer to the observation by Wilcox J that the Minister should consider exercising his power under s 417 in favour of the appellant. As the comprehensive analysis made by Wilcox J in his judgment reveals, the Court has had the opportunity to examine the entire history of the appellant’s involvement in the review system. The circumstances of this case are exceptional and call for a quick and humane conclusion in favour of the appellant. No doubt, in many approaches to the Minister, cases are urged as “special cases” which are special only in the eyes of their proponents. The history of this case does make it special. It is special because the appellant has special problems of depression and post-traumatic stress disorder arising out of the circumstances of the case. It is special because there have been a number of errors in the review system. A number of these errors make it oppressive to require the appellant to have to face another hearing. The review system is intended to be humane and civilised. In the very few exceptional cases where the hearing processes do not achieve that aim, the Minister is given an overriding power in s 417 to ensure that the aim is achieved. It should be emphasised that the decision to act under s 417 is, of course, that of the Minister. I do not, and could not, compel the Minister to make a decision in favour of the appellant under s 417. On the other hand, it would be a failure in the function of the Court, having so closely reviewed the circumstances of the appellant, not to draw attention to the strong claim for special consideration which this case demands.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:              23 December 1997