FEDERAL COURT OF AUSTRALIA

SZLAT v Minister for Immigration and Citizenship [2008] FCA 645

Migration Act 1958 (Cth) ss 424A(1), 424A(3)(b)

Arif v Minister for Immigration and Multicultural Affairs [2002] FCA 1053

F& D Bonaccorsa Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537

Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555

Johnston v Johnston (2000) 201 CLR 488

Laws v Australian Broadcasting (1990) 170 CLR 70

Long v Minister Immigration and Multicultural Affairs (2000) 106 FCR 183

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister for Immigration and Citizenship v Le [2007] FCA 1318

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

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

Soltanyzand v Minister for Immigration and Multicultural Affairs [2000] FCA 917

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

SZLAT v Minister for Immigration & Citizenship & Anor [2007] FMCA 2108

SZLAT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 10 of 2008

MCKERRACHER J

13 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the costs of the first respondent fixed at $1,900 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of a Federal Magistrate (Cameron FM) delivered on 5 December 2007 (SZLAT v Minister for Immigration & Citizenship & Anor [2007] FMCA 2108) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 June 2007. 

2                     The Tribunal in turn, had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection (class XA) visa to the appellant.

Background

3                     The appellant is a citizen of The People’s Republic of China.  He arrived in Australia on 16 January 2007.  On 29 January 2007 he lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 14 February 2007.  On 16 March 2007 the appellant applied to the Tribunal for a review of that decision.

4                     The appellant claims to fear persecution in China due to his political opinion.  According to the appellant, corrupt officials denied him adequate disaster relief after the 2006 typhoon Sangmei.  He alleges that he joined other protestors in Fuding City and subsequently helped distribute petitions in and around Nanzhen village urging the government to investigate corrupt officials and to help typhoon victims.  The appellant claims that he organised a sit-in protest in front of the Fuding Public Security Bureau (PSB) building on 25 November 2006 after the arrest of fellow-campaigner Ms He.  This allegedly resulted in his arrest and detention for 20 days, during which time he was subjected to ‘inhuman persecution’.

5                     According to the appellant, he was released after the payment of a bribe and his consent to a number of conditions including the cessation of his petitioning.  However, the appellant claims that he continued to protest government activities.  This allegedly brought him to the attention of the PSB again, and he was encouraged by friends and family to leave China.  He claims that a warrant for his arrest was issued after his departure.

TRIBUNAL’S DECISION

6                     The Tribunal found that the appellant was an ‘unimpressive witness’ whose evidence about key aspects of his claims were ‘vague and lacking in detail’.  It found that the appellant had been unable to explain the nature of his colleague Ms He’s involvement in anti-government protest activities and how he had been informed of her arrest.  The appellant’s explanation for learning of his own impending arrest was similarly vague.  These deficiencies led the Tribunal to doubt the credibility of the appellant’s evidence about the events leading up to his departure from China.

7                     The Tribunal went on and I stress, additionally, to find that the appellant had been planning to leave China from at least October 2006.  The Tribunal concluded that this suggested that he had already been planning to travel overseas for economic reasons before the alleged persecution occurred.  The Tribunal further found that aspects of the appellant’s claims and evidence relating to the November 2006 protests, his attempts to obtain Ms He’s release and his continued activities after his own imprisonment lacked credibility.  Moreover, it found his claimed lack of difficulties in leaving China inconsistent with his being of particular adverse interest to the authorities.  As a result, the Tribunal did not accept that the appellant was a credible witness, did not accept that he was of adverse interest to the Chinese authorities, and did not accept that he held a well-founded fear of Convention-related persecution in China (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).

FEDERAL MAGISTRATE’S DECISION

8                     Before the learned Federal Magistrate the appellant claimed that:

1.         The Tribunal assessed my credibility incorrectly;

2.         The Tribunal failed to comply with its obligation under s 424A(1) of the Act.

9                     In submissions before his Honour , the appellant raised two additional issues:

1.                  The Tribunal misunderstood the appellant’s claim.

2.                  The Tribunal did not give the appellant enough time to give all the evidence he wished to give.

10                  In relation to the first ground, the appellant provided particulars raising a number of issues.  The Federal Magistrate could find nothing to support the appellant’s claims that the quality of translation by the interpreter at the Tribunal hearing was inadequate.  Nor could his Honour identify any improper questions asked by the Tribunal.  His Honour concluded that the appellant appeared to misconceive the role of the Tribunal as fact-finder and his Honour re-stressed that there was no obligation for it to make inquiries beyond the evidence presented by the appellant.

11                  In relation to other matters contained in the particulars, his Honour found that there was nothing to substantiate illogicality on the part of the Tribunal; no bad faith or reasonable apprehension of bias on the part of the Tribunal; and nothing to suggest that the Tribunal’s mind ‘was not open to persuasion’.

12                  In relation to the second ground, his Honour found that the Tribunal had relied upon information submitted by the appellant in reaching its decision.  His Honour held that such information was subject to the exception to s 424A(1) of the Migration Act 1958 (Cth) (the Act) contained in s 424A(3)(b).  His Honour further held that any subjective conclusion arrived at by the Tribunal would be excluded from the operation of s 424A(1) of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.

13                  His Honour could find no factual basis for the claim raised in the particulars that the Tribunal had misunderstood the claim that the appellant was making.  It noted that the Tribunal had discussed the facts with the appellant with no apparent misunderstanding.  Similarly, noting that the record of the hearing showed that it lasted for two hours, but in the absence of a transcript, his Honour could find nothing to support the allegation that the Tribunal had given the appellant insufficient time to give all of the evidence which he wished to give.  In these circumstances, the appellant had been unable to disclose any jurisdictional error on the part of the Tribunal and the matter was dismissed.

Grounds of appeal

14                  The appellant’s current notice of appeal filed on 4 January 2008 raises two grounds of appeal:

1.         The Federal Magistrate erred in law.

2.         The Federal Magistrate was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.

15                  The pleaded grounds of appeal are supported by particulars, which are in the following terms:

1.         The Tribunal assessed my credibility incorrectly or the Tribunal made its decision with bias.  The Tribunal failed to bring an independent mind to bear on the issue to be decided; and the Tribunal made its finding based on nothing but its unwarranted assumptions.  The Tribunal may use its own knowledge but should do so under the condition that its knowledge has been fully disclosed to the applicant so that the applicant can comment upon it. 

2.         The Tribunal failed to comply with its obligation under s.424A(1) of the Act.  The Tribunal has considered some of the information such as so-called “inconsistencies” of my evidences (sic) as reason in its decision.  However, the Tribunal failed to consider that I had sometimes been confused by unclear or improper interpreter at the hearing before the Tribunal; or I had sometimes been confused by unclear or improper questioned (sic) put by the Presiding Member.  Furthermore, the Tribunal has, sometimes, made its decision relied on its unwarranted assumption or its own knowledge.

16                  At the hearing of the appeal before me the appellant submitted that it was not correct for the Tribunal to conclude that there had not been great detail in the information that he had given to the Tribunal.  Alternatively, he said that if there was not much detail it was because not many questions were asked of the Tribunal which invited much detail.  Secondly, he said that when he did try to explain things he was interrupted in the course of giving his explanation and thirdly, he said that the interpreter failed to adequately or correctly interpret the detailed answers to the questions that he gave. 

17                  As before the Federal Magistrate, the appellant was particularly critical of the Tribunal basing its decision in relation to his ability to leave the country at a date which preceded his arrest.  He said that the worst error of the Tribunal was its failure to give him any information at all about the basis on which it was reaching its conclusion.  He stressed the corruption that existed with officials in China and appeared to submit that the Tribunal failed to understand the existence of that corruption. 

18                  He said that the Tribunal had breached s 424A of the Act generally by failing to give him the information on which it proposed to rely and failing to give him the opportunity to respond in writing to that information. 

19                  In response, counsel for the first respondent, Ms McWilliam, submitted that the effective thrust of the submissions made today were directed to a merits review in the sense that they predominantly complained about the outcome of the decision rather than the process by which the decision was reached. 

20                  In relation to the complaint about the interpreter, Ms McWilliams said that the Federal Magistrate addressed these issues.  She says that his Honour found no evidence that there was any difficulty with the interpreter and that there was no error in this finding as the law in relation to the competency of interpreters is well established – the question is whether the evidence before the Court discloses such incompetence or other defect in interpretation that the appellant can be said to have been effectively prevented from giving his evidence in relation to a matter of significance for his claim or the Tribunal’s decision:  Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; Long v Minister Immigration and Multicultural Affairs (2000) 106 FCR 183; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; Soltanyzand v Minister for Immigration and Multicultural Affairs [2000] FCA 917 and Arif v Minister for Immigration and Multicultural Affairs [2002] FCA 1053.  Ms McWilliam further submitted that there is nothing to suggest that such is the case here. 

21                  In connection with the alleged interruptions, Ms McWilliam pointed out that the Federal Magistrate also dealt with that issue at [26] of his reasons in the following terms:

The applicant also submitted today that the Tribunal had not given him enough time to explain, which he described as the member not waiting for him to finish his explanation before the Tribunal moved on to the next issue. The applicant also said that he asked the interpreter to slow down. However, in the absence of a transcript, there is no basis to conclude that the applicant was not given sufficient time to give whatever evidence or to make whatever arguments he wished to give or to make. In this regard, it should be noted that the “RRT Hearing Record" discloses that the hearing took almost exactly two hours. Consequently, I cannot conclude that this asserted ground of review is made out.

22                  As to the complaint that the Tribunal relied upon independent country information, Ms McWilliam stressed that the true basis of the decision by the Tribunal was its failure to accept the evidence of the appellant, that is to say, it declined to believe his complaints and evidence.  In my view that assessment is correct.  To the extent the Tribunal referred to independent country evidence, it was citing that information as being of no assistance to the case put by the appellant. 

23                  In relation to the submission made by the appellant that he was given no opportunity to respond in writing to those matters on which the Tribunal proposed to rely, counsel submitted that no such obligation exists under the Act.  Counsel relied on the decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] for the proposition that the role of the Tribunal is not to adopt the position of the contradicter.  Its role is to ascertain whether the appellant has been able to make out his case.  Clearly the onus to do that is on the appellant.  In SZBEL at [47]-[49], the High Court said:

47        First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

48        Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (30):

the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

49        Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

CONSIDERATION

Credibility

24                  The first ground is in reality a complaint directed to the merits of the Tribunal’s findings as it goes to the credibility issue.  It does not constitute a proper ground for review or appeal:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at [67].

25                  There is no support for the assertion that the Tribunal assessed the credibility of the appellant incorrectly or in any erroneous manner that may be susceptible to review.  In its reasons, the Tribunal pointed to particular aspects of the appellant’s oral evidence which were found to be inconsistent and subsequently found that the appellant was not a credible witness.  This is an entirely conventional and appropriate process. 

26                  In NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250 the Full Court (Spender, Moore and Kiefel JJ) in reviewing the decision of the primary judge stated at [3]-[9]:

3          The Tribunal found that the appellant was not a credible witness. As to his claims of political persecution, the Tribunal said that it found the evidence advanced by the appellant in support of that claim "vague, confused and inconsistent with the independent evidence" which it ultimately referred to in its decision.

4          In respect of the appellant's claim to the Tribunal, made just before the hearing, that he would be persecuted on account of his homosexuality, the Tribunal characterised that claim as "unconvincing" and as appearing "contrived".

5          The primary judge said:

It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility.

His Honour correctly noted that so long as credibility findings are open on the evidence before the Tribunal, there is no reviewable error committed by the Tribunal. His Honour said, again correctly, that the decision of the Tribunal was in the nature of a privative clause decision as defined by subsection 474(2) of the Migration Act 1958 (Cth) ("the Act"). His Honour noted that the decision was not a decision excluded by subsections (4) and (5) of section 474 of the Act, and said:

In those circumstances this court has held that unless it can be shown by an Applicant that a Tribunal decision was not made in bona fide exercise of its powers under the Act, or else that the decision did not relate to the subject matter of the Act, or else that the decision is not reasonably capable of reference to the power given to the decision maker, then in accordance with the Act, the decision of the Tribunal has been rendered by the legislature to be final and conclusive.

6          His Honour's judgment concluded by saying:

In my opinion the Applicant has not established a case within any one of the long established three principles [established in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598] restated in the authorities of this court ...

…

9          In the absence of a successful challenge to the finding that the Hickman conditions were satisfied, the appeal must be dismissed with costs. The order of the Court is that the appeal is dismissed, and the appellant is to pay the respondent's costs of the appeal, to be taxed if not agreed.

27                  In my view, it is clear that the Tribunal’s assessment of the appellant’s credibility was open on the evidence before it.  It follows that this challenge to the Tribunal’s findings cannot succeed.

Bias

28                  The appellant also claims that the Tribunal was biased in making its decision.  He has particularised this as apprehended bias in the sense that the Tribunal failed to bring an independent mind to bear on the issue to be decided and that the Tribunal made its finding based on nothing but its unwarranted assumptions.  

29                  In relation to a complaint of bias, an allegation must be distinctly made and clearly proven – Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69].  It is a rare case in which actual bias would be made on the part of the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].  The appellant’s claim appears to be one in relation to apprehended bias. 

30                  In order to establish apprehended bias the appellant needs to demonstrate that a fair-minded, properly informed lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: see F& D Bonaccorsa Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 per Biscoe J and Johnston v Johnston (2000) 201 CLR 488.  

31                  Further, in Minister for Immigration and Citizenship v MZXPA and Another [2008] FCA 185 Sundberg J said [14]-[18]:

14.       An informed and instructed hypothetical person would also know that the tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 ; 144 ALR 567 at 595–6 ; 48 ALD 481 at 507–8 ; [1997] HCA 22.  It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa.  If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]–[18]. The tribunal is accordingly required to assess the probative value of evidence put before it by an applicant.  Where the tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [30].

15.       Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.  Thus in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319 a Full Court (Lockhart, Pincus and Gummow JJ) said:

expression by a court or tribunal of its current view of an issue may be advantageous on occasions, rather than otherwise. The rules as to apparent bias must be balanced against the desirability of a thoroughly fair contest and the latter may positively favour a disclosure, without any equivocation, of an opinion held by the court or tribunal at a particular stage of the proceedings. In the absence of such disclosure, there may be a justified resentment on the losing side, based on their not having been made aware of the direction of the thinking of the court or tribunal on a particular issue and not having been given a fair opportunity to turn it into another path.

16        In Richmond River Broadcasting v Australian Broadcasting Tribunal (1992) 106 ALR 671 at 681 Wilcox J, after referring to the Kaycliff passage quoted at [15], said:

It is an everyday event for judges to indicate to counsel, during the course of a hearing, their impressions of a case, including their impressions of witnesses and of the facts. They do so to assist counsel. It is always an advantage for counsel to know the way in which the judge’s mind is working; submissions may be targeted to the aspect of the case which is troubling the judge. Where a judge takes this course nobody would suggest that the judge ought to be disqualified from concluding the case. The reason is that the judge is merely expressing a tentative view and inviting a response which he or she may take into account in determining whether to adhere to, or abandon, that view in the final decision. The readiness to listen and be persuaded is the critical matter.

17        The critical matter to which his Honour referred in the final sentence is reflected in the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1991) 170 CLR 70 at 100:

When suspected prejudgment of an issue is relied upon to ground disqualification of a decision maker, what must be firmly established is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion, irrespective of the evidence or arguments presented.

See also Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 at 219 and Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532, 564. As Dr Forbes puts it, there will be no apprehension of bias if a tribunal tries to assist the parties, or to enlighten itself, by indicating that it has a provisional view, subject to further evidence or argument: Justice in Tribunals 2nd ed (2006) at 301-302.

18        Section 424A is important in this connection. It is a statutory variant of the concept the subject of the discussion in [15] to [17]. Subsection (1)(a) requires the Tribunal to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. (emphasis added)

32                  In the present appeal, there is no evidence by way of a transcript in support of the appellant’s claim of bias. The Federal Magistrate analysed the evidence contained in the Tribunal’s decision record which contains its statement of reasons.  This record evidences a significant number of questions put to the appellant during the course of the hearing and his subsequent answers.  The record also illustrates the course by which the Tribunal assessed the appellant’s evidence and the basis of its findings made on credibility.  Given the nature of the obligations on the Tribunal in order to discharge its function, there is no material identified which would support a conclusion of apprehended bias.  It cannot be said that the Tribunal was predisposed to a conclusion in the matter and that the conclusion would not be altered despite evidence and arguments put before it.  

33               MCKERRACHER J

13 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant is to pay the costs of the first respondent fixed at $1,900 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of a Federal Magistrate (Cameron FM) delivered on 5 December 2007 (SZLAT v Minister for Immigration & Citizenship & Anor [2007] FMCA 2108) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 June 2007. 

2                     The Tribunal in turn, had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection (class XA) visa to the appellant.

Background

3                     The appellant is a citizen of The People’s Republic of China.  He arrived in Australia on 16 January 2007.  On 29 January 2007 he lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 14 February 2007.  On 16 March 2007 the appellant applied to the Tribunal for a review of that decision.

4                     The appellant claims to fear persecution in China due to his political opinion.  According to the appellant, corrupt officials denied him adequate disaster relief after the 2006 typhoon Sangmei.  He alleges that he joined other protestors in Fuding City and subsequently helped distribute petitions in and around Nanzhen village urging the government to investigate corrupt officials and to help typhoon victims.  The appellant claims that he organised a sit-in protest in front of the Fuding Public Security Bureau (PSB) building on 25 November 2006 after the arrest of fellow-campaigner Ms He.  This allegedly resulted in his arrest and detention for 20 days, during which time he was subjected to ‘inhuman persecution’.

5                     According to the appellant, he was released after the payment of a bribe and his consent to a number of conditions including the cessation of his petitioning.  However, the appellant claims that he continued to protest government activities.  This allegedly brought him to the attention of the PSB again, and he was encouraged by friends and family to leave China.  He claims that a warrant for his arrest was issued after his departure.

TRIBUNAL’S DECISION

6                     The Tribunal found that the appellant was an ‘unimpressive witness’ whose evidence about key aspects of his claims were ‘vague and lacking in detail’.  It found that the appellant had been unable to explain the nature of his colleague Ms He’s involvement in anti-government protest activities and how he had been informed of her arrest.  The appellant’s explanation for learning of his own impending arrest was similarly vague.  These deficiencies led the Tribunal to doubt the credibility of the appellant’s evidence about the events leading up to his departure from China.

7                     The Tribunal went on and I stress, additionally, to find that the appellant had been planning to leave China from at least October 2006.  The Tribunal concluded that this suggested that he had already been planning to travel overseas for economic reasons before the alleged persecution occurred.  The Tribunal further found that aspects of the appellant’s claims and evidence relating to the November 2006 protests, his attempts to obtain Ms He’s release and his continued activities after his own imprisonment lacked credibility.  Moreover, it found his claimed lack of difficulties in leaving China inconsistent with his being of particular adverse interest to the authorities.  As a result, the Tribunal did not accept that the appellant was a credible witness, did not accept that he was of adverse interest to the Chinese authorities, and did not accept that he held a well-founded fear of Convention-related persecution in China (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).

FEDERAL MAGISTRATE’S DECISION

8                     Before the learned Federal Magistrate the appellant claimed that:

1.         The Tribunal assessed my credibility incorrectly;

2.         The Tribunal failed to comply with its obligation under s 424A(1) of the Act.

9                     In submissions before his Honour , the appellant raised two additional issues:

1.                  The Tribunal misunderstood the appellant’s claim.

2.                  The Tribunal did not give the appellant enough time to give all the evidence he wished to give.

10                  In relation to the first ground, the appellant provided particulars raising a number of issues.  The Federal Magistrate could find nothing to support the appellant’s claims that the quality of translation by the interpreter at the Tribunal hearing was inadequate.  Nor could his Honour identify any improper questions asked by the Tribunal.  His Honour concluded that the appellant appeared to misconceive the role of the Tribunal as fact-finder and his Honour re-stressed that there was no obligation for it to make inquiries beyond the evidence presented by the appellant.

11                  In relation to other matters contained in the particulars, his Honour found that there was nothing to substantiate illogicality on the part of the Tribunal; no bad faith or reasonable apprehension of bias on the part of the Tribunal; and nothing to suggest that the Tribunal’s mind ‘was not open to persuasion’.

12                  In relation to the second ground, his Honour found that the Tribunal had relied upon information submitted by the appellant in reaching its decision.  His Honour held that such information was subject to the exception to s 424A(1) of the Migration Act 1958 (Cth) (the Act) contained in s 424A(3)(b).  His Honour further held that any subjective conclusion arrived at by the Tribunal would be excluded from the operation of s 424A(1) of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.

13                  His Honour could find no factual basis for the claim raised in the particulars that the Tribunal had misunderstood the claim that the appellant was making.  It noted that the Tribunal had discussed the facts with the appellant with no apparent misunderstanding.  Similarly, noting that the record of the hearing showed that it lasted for two hours, but in the absence of a transcript, his Honour could find nothing to support the allegation that the Tribunal had given the appellant insufficient time to give all of the evidence which he wished to give.  In these circumstances, the appellant had been unable to disclose any jurisdictional error on the part of the Tribunal and the matter was dismissed.

Grounds of appeal

14                  The appellant’s current notice of appeal filed on 4 January 2008 raises two grounds of appeal:

1.         The Federal Magistrate erred in law.

2.         The Federal Magistrate was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.

15                  The pleaded grounds of appeal are supported by particulars, which are in the following terms:

1.         The Tribunal assessed my credibility incorrectly or the Tribunal made its decision with bias.  The Tribunal failed to bring an independent mind to bear on the issue to be decided; and the Tribunal made its finding based on nothing but its unwarranted assumptions.  The Tribunal may use its own knowledge but should do so under the condition that its knowledge has been fully disclosed to the applicant so that the applicant can comment upon it. 

2.         The Tribunal failed to comply with its obligation under s.424A(1) of the Act.  The Tribunal has considered some of the information such as so-called “inconsistencies” of my evidences (sic) as reason in its decision.  However, the Tribunal failed to consider that I had sometimes been confused by unclear or improper interpreter at the hearing before the Tribunal; or I had sometimes been confused by unclear or improper questioned (sic) put by the Presiding Member.  Furthermore, the Tribunal has, sometimes, made its decision relied on its unwarranted assumption or its own knowledge.

16                  At the hearing of the appeal before me the appellant submitted that it was not correct for the Tribunal to conclude that there had not been great detail in the information that he had given to the Tribunal.  Alternatively, he said that if there was not much detail it was because not many questions were asked of the Tribunal which invited much detail.  Secondly, he said that when he did try to explain things he was interrupted in the course of giving his explanation and thirdly, he said that the interpreter failed to adequately or correctly interpret the detailed answers to the questions that he gave. 

17                  As before the Federal Magistrate, the appellant was particularly critical of the Tribunal basing its decision in relation to his ability to leave the country at a date which preceded his arrest.  He said that the worst error of the Tribunal was its failure to give him any information at all about the basis on which it was reaching its conclusion.  He stressed the corruption that existed with officials in China and appeared to submit that the Tribunal failed to understand the existence of that corruption. 

18                  He said that the Tribunal had breached s 424A of the Act generally by failing to give him the information on which it proposed to rely and failing to give him the opportunity to respond in writing to that information. 

19                  In response, counsel for the first respondent, Ms McWilliam, submitted that the effective thrust of the submissions made today were directed to a merits review in the sense that they predominantly complained about the outcome of the decision rather than the process by which the decision was reached. 

20                  In relation to the complaint about the interpreter, Ms McWilliams said that the Federal Magistrate addressed these issues.  She says that his Honour found no evidence that there was any difficulty with the interpreter and that there was no error in this finding as the law in relation to the competency of interpreters is well established – the question is whether the evidence before the Court discloses such incompetence or other defect in interpretation that the appellant can be said to have been effectively prevented from giving his evidence in relation to a matter of significance for his claim or the Tribunal’s decision:  Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; Long v Minister Immigration and Multicultural Affairs (2000) 106 FCR 183; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; Soltanyzand v Minister for Immigration and Multicultural Affairs [2000] FCA 917 and Arif v Minister for Immigration and Multicultural Affairs [2002] FCA 1053.  Ms McWilliam further submitted that there is nothing to suggest that such is the case here. 

21                  In connection with the alleged interruptions, Ms McWilliam pointed out that the Federal Magistrate also dealt with that issue at [26] of his reasons in the following terms:

The applicant also submitted today that the Tribunal had not given him enough time to explain, which he described as the member not waiting for him to finish his explanation before the Tribunal moved on to the next issue. The applicant also said that he asked the interpreter to slow down. However, in the absence of a transcript, there is no basis to conclude that the applicant was not given sufficient time to give whatever evidence or to make whatever arguments he wished to give or to make. In this regard, it should be noted that the “RRT Hearing Record" discloses that the hearing took almost exactly two hours. Consequently, I cannot conclude that this asserted ground of review is made out.

22                  As to the complaint that the Tribunal relied upon independent country information, Ms McWilliam stressed that the true basis of the decision by the Tribunal was its failure to accept the evidence of the appellant, that is to say, it declined to believe his complaints and evidence.  In my view that assessment is correct.  To the extent the Tribunal referred to independent country evidence, it was citing that information as being of no assistance to the case put by the appellant. 

23                  In relation to the submission made by the appellant that he was given no opportunity to respond in writing to those matters on which the Tribunal proposed to rely, counsel submitted that no such obligation exists under the Act.  Counsel relied on the decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] for the proposition that the role of the Tribunal is not to adopt the position of the contradicter.  Its role is to ascertain whether the appellant has been able to make out his case.  Clearly the onus to do that is on the appellant.  In SZBEL at [47]-[49], the High Court said:

47        First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

48        Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (30):

the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

49        Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

CONSIDERATION

Credibility

24                  The first ground is in reality a complaint directed to the merits of the Tribunal’s findings as it goes to the credibility issue.  It does not constitute a proper ground for review or appeal:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at [67].

25                  There is no support for the assertion that the Tribunal assessed the credibility of the appellant incorrectly or in any erroneous manner that may be susceptible to review.  In its reasons, the Tribunal pointed to particular aspects of the appellant’s oral evidence which were found to be inconsistent and subsequently found that the appellant was not a credible witness.  This is an entirely conventional and appropriate process. 

26                  In NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250 the Full Court (Spender, Moore and Kiefel JJ) in reviewing the decision of the primary judge stated at [3]-[9]:

3          The Tribunal found that the appellant was not a credible witness. As to his claims of political persecution, the Tribunal said that it found the evidence advanced by the appellant in support of that claim "vague, confused and inconsistent with the independent evidence" which it ultimately referred to in its decision.

4          In respect of the appellant's claim to the Tribunal, made just before the hearing, that he would be persecuted on account of his homosexuality, the Tribunal characterised that claim as "unconvincing" and as appearing "contrived".

5          The primary judge said:

It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility.

His Honour correctly noted that so long as credibility findings are open on the evidence before the Tribunal, there is no reviewable error committed by the Tribunal. His Honour said, again correctly, that the decision of the Tribunal was in the nature of a privative clause decision as defined by subsection 474(2) of the Migration Act 1958 (Cth) ("the Act"). His Honour noted that the decision was not a decision excluded by subsections (4) and (5) of section 474 of the Act, and said:

In those circumstances this court has held that unless it can be shown by an Applicant that a Tribunal decision was not made in bona fide exercise of its powers under the Act, or else that the decision did not relate to the subject matter of the Act, or else that the decision is not reasonably capable of reference to the power given to the decision maker, then in accordance with the Act, the decision of the Tribunal has been rendered by the legislature to be final and conclusive.

6          His Honour's judgment concluded by saying:

In my opinion the Applicant has not established a case within any one of the long established three principles [established in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598] restated in the authorities of this court ...

…

9          In the absence of a successful challenge to the finding that the Hickman conditions were satisfied, the appeal must be dismissed with costs. The order of the Court is that the appeal is dismissed, and the appellant is to pay the respondent's costs of the appeal, to be taxed if not agreed.

27                  In my view, it is clear that the Tribunal’s assessment of the appellant’s credibility was open on the evidence before it.  It follows that this challenge to the Tribunal’s findings cannot succeed.

Bias

28                  The appellant also claims that the Tribunal was biased in making its decision.  He has particularised this as apprehended bias in the sense that the Tribunal failed to bring an independent mind to bear on the issue to be decided and that the Tribunal made its finding based on nothing but its unwarranted assumptions.  

29                  In relation to a complaint of bias, an allegation must be distinctly made and clearly proven – Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69].  It is a rare case in which actual bias would be made on the part of the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].  The appellant’s claim appears to be one in relation to apprehended bias. 

30                  In order to establish apprehended bias the appellant needs to demonstrate that a fair-minded, properly informed lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: see F& D Bonaccorsa Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 per Biscoe J and Johnston v Johnston (2000) 201 CLR 488.  

31                  Further, in Minister for Immigration and Citizenship v MZXPA and Another [2008] FCA 185 Sundberg J said [14]-[18]:

14.       An informed and instructed hypothetical person would also know that the tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 ; 144 ALR 567 at 595–6 ; 48 ALD 481 at 507–8 ; [1997] HCA 22.  It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa.  If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]–[18]. The tribunal is accordingly required to assess the probative value of evidence put before it by an applicant.  Where the tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [30].

15.       Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.  Thus in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319 a Full Court (Lockhart, Pincus and Gummow JJ) said:

expression by a court or tribunal of its current view of an issue may be advantageous on occasions, rather than otherwise. The rules as to apparent bias must be balanced against the desirability of a thoroughly fair contest and the latter may positively favour a disclosure, without any equivocation, of an opinion held by the court or tribunal at a particular stage of the proceedings. In the absence of such disclosure, there may be a justified resentment on the losing side, based on their not having been made aware of the direction of the thinking of the court or tribunal on a particular issue and not having been given a fair opportunity to turn it into another path.

16        In Richmond River Broadcasting v Australian Broadcasting Tribunal (1992) 106 ALR 671 at 681 Wilcox J, after referring to the Kaycliff passage quoted at [15], said:

It is an everyday event for judges to indicate to counsel, during the course of a hearing, their impressions of a case, including their impressions of witnesses and of the facts. They do so to assist counsel. It is always an advantage for counsel to know the way in which the judge’s mind is working; submissions may be targeted to the aspect of the case which is troubling the judge. Where a judge takes this course nobody would suggest that the judge ought to be disqualified from concluding the case. The reason is that the judge is merely expressing a tentative view and inviting a response which he or she may take into account in determining whether to adhere to, or abandon, that view in the final decision. The readiness to listen and be persuaded is the critical matter.

17        The critical matter to which his Honour referred in the final sentence is reflected in the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1991) 170 CLR 70 at 100:

When suspected prejudgment of an issue is relied upon to ground disqualification of a decision maker, what must be firmly established is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion, irrespective of the evidence or arguments presented.

See also Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571, Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 at 219 and Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532, 564. As Dr Forbes puts it, there will be no apprehension of bias if a tribunal tries to assist the parties, or to enlighten itself, by indicating that it has a provisional view, subject to further evidence or argument: Justice in Tribunals 2nd ed (2006) at 301-302.

18        Section 424A is important in this connection. It is a statutory variant of the concept the subject of the discussion in [15] to [17]. Subsection (1)(a) requires the Tribunal to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. (emphasis added)

32                  In the present appeal, there is no evidence by way of a transcript in support of the appellant’s claim of bias. The Federal Magistrate analysed the evidence contained in the Tribunal’s decision record which contains its statement of reasons.  This record evidences a significant number of questions put to the appellant during the course of the hearing and his subsequent answers.  The record also illustrates the course by which the Tribunal assessed the appellant’s evidence and the basis of its findings made on credibility.  Given the nature of the obligations on the Tribunal in order to discharge its function, there is no material identified which would support a conclusion of apprehended bias.  It cannot be said that the Tribunal was predisposed to a conclusion in the matter and that the conclusion would not be altered despite evidence and arguments put before it.  

33                  In relation to the complaint about improper questioning by the Tribunal Member, the appellant has identified no improper questioning, no interruption, no specific explanation which would have been given had time permitted and no errors in transcription or interpretation.  There is nothing in the Tribunal’s decision record which would indicate confusion in either questions asked or responses given. 

34                  In my view, the learned Federal Magistrate was correct in finding that there was nothing in the decision record to suggest that there had been anything other than a conscientious attempt by the Tribunal to undertake its duties and nothing to suggest that the Tribunal’s mind was not open to persuasion.

Section 424

35                  The appellant further alleges the Tribunal failed to comply with its obligation under s 424A(1) of the Act.  

36                  It is clear from s 424A(3)(b) of the Act that the obligation under s 424A(1) does not apply to information that the appellant gave for the purpose of the application for review.  His Honour’s conclusion that the information relied upon when reaching its conclusion was information which had been provided to it by the appellant at the Tribunal hearing has not been shown to be incorrect.

37                  In addition, the obligation to disclose ‘information’ under s 424A(1) does not extend to the disclosure of conclusions and thought processes of the decision-maker: see SZBYR 235 ALR 609 at [18]:

Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information" ([2004] FCAFC 123; (2004) 206 ALR 471 at 476-477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at 282-284)

does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

38                  Finally, the appellant claims that the Tribunal failed to consider that he had sometimes been confused by the interpreter and, in particular, by questions put to him by the Tribunal.  This case can be distinguished from Minister for Immigration and Citizenship v Le [2007] FCA 1318 where a statement containing significant admissions had been mistranslated.  In the present circumstances there is nothing before the Court to indicate that the appellant had difficulty in understanding the questions put to him or that the interpreter’s skills were inadequate.

Conclusion

39                  In my view, the appellant has not established any jurisdictional error in the reasoning of the Federal Magistrate nor am I able to discern any error of a jurisdictional nature on the part of the Tribunal. 

1.                  The appeal will be dismissed.

2.                  The appellant is to pay the costs of the first respondent fixed at $1,900 pursuant O 62 r 4(2)(c) of the Federal Court Rules.

Associate:

Dated:         13 May 2008