FEDERAL COURT OF AUSTRALIA

SZLFW v Minister for Immigration and Citizenship [2008] FCA 780

Migration Act 1958 (Cth)

Chey v Minister for Immigration and Citizenship [2007] FCA 871

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45

Jones v Australian Competition and Consumer Commission (2004) 76 ALD 424

Minister for Immigration & Citizenship v Applicant A125 of 2003 & Anor (2007) 163 FCR 285

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

Rana v Australian Federal Police (2006) 44 AAR 151

Re JRL: Ex parte CJL (1986) 161 CLR 342

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361

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

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471  

SZLFW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 331 of 2008

GORDON J

28 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs fixed in the sum of $1,900.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the order of Federal Magistrate Scarlett of 20 February 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 31 July 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) to refuse to grant a protection visa to the appellant.

PROCEDURAL HISTORY

2                     The appellant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 24 January 2007.  On 2 March 2007, the appellant lodged an application for a protection visa with the first respondent.  A delegate of the first respondent refused the application for a protection visa on 24 March 2007.  On 27 April 2007, the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal, the appellant claimed to fear persecution in China as a Falun Gong practitioner.  He had allegedly been forced to report to the police on a weekly basis after the ban on Falun Gong in 1999 and had joined anti-Chinese protest activities since arriving in Australia. 

4                     At the hearing before the Tribunal, the appellant claimed that his application had been prepared with the assistance of a friend who had translated his statements from Chinese to English.

THE TRIBUNAL DECISION

5                     The Tribunal did not accept that the appellant was a genuine Falun Gong practitioner.  Although it accepted that an injury to the appellant might have affected his ability to demonstrate the five Falun Gong exercises at the hearing, the Tribunal found his inability to even describe the exercises was inconsistent with his claim to have been a genuine practitioner.  The Tribunal concluded that he had concocted his claim to obtain a protection visa.  Turning to the appellant’s account of persecution suffered in China, the Tribunal could not be satisfied of the veracity of his account as he had provided limited corroborating evidence and had departed China legally.  In those circumstances, the Tribunal did not accept that the appellant held a well-founded fear of future Convention-related persecution in China.

THE COURT BELOW

6                     Before the Federal Magistrate, the appellant claimedthat the Tribunal:

1.                  had failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”) by failing to invite the appellant to comment on its finding that he had lawfully obtained his passport; and

2.                  had been biased when concluding that the appellant was unable to demonstrate the five Falun Gong exercises.

7                     The Federal Magistrate found that the information about the appellant’s acquisition of a Chinese passport was provided by the appellant to the Tribunal for the purposes of review.  The requirement to give notice under s 424A(1) in respect of that information was therefore excluded by s 424A(3)(b) of the Act.  His Honour noted that the submissions by the first respondent relied upon SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] (quoting VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477), for the proposition that “information” in s 424A:

… does not encompass the [T]ribunal’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 [T]ribunal in weighing up the evidence by reference to those gaps …

His Honour was, therefore, unable to identify any other information which would invoke the obligation in s 424A(1).

8                     Addressing the second ground, his Honour referred to SBBF v Minister for Immigration [2002] FCAFC 358 and SBBS v Minister for Immigration [2002] FCAFC 361 as authority for the proposition that an allegation of bias is serious and will seldom ever be established simply by reading the reasons for decision of the Tribunal.  His Honour was unable to find any evidence on which to base such a claim.  Moreover, the Federal Magistrate found that the appellant had misconceived the Tribunal’s grounds for dismissing his claim which had been based on his lack of knowledge of Falun Gong exercises rather than his inability to perform them.

9                     The Federal Magistrate dismissed the application because the appellant had failed to demonstrate that the Tribunal had fallen into jurisdictional error.

THE PRESENT APPEAL

10                  The appellant’s Notice of Appeal, filed 10 March 2008, repeats the grounds argued before the Federal Magistrate.

Ground of appeal 1: denial of procedural fairness

11                  The appellant’s first ground of appeal claims:

… the [Tribunal] failed to afford the [appellant] procedural fairness as it failed to invite the [appellant] to comment on information that the Tribunal consider[ed] would be the reason, or part of the reason, for affirming the decision under review.  By failing to invite the [appellant] to comment[,] the Tribunal acted in breach of s 424A of the Act.  The Tribunal found that the [appellant] obtained [a] passport lawfully and had no problems exiting [China].  The Tribunal failed to invite the [appellant] to comment on this and make sure that the [appellant] understands how and why this information is relevant.

(Emphasis added.)

12                  The information was relevant to the appellant’s application but had, in fact, been provided by the appellant.  The Federal Magistrate properly concluded that the requirement to give notice under s 424A(1) in respect of this information was therefore excluded by s 424A(3)(b) of the Act: see also Minister for Immigration & Citizenship v Applicant A125 of 2003 & Anor (2007) 163 FCR 285, at [63]-[75] per Emmett, Weinberg and Lander JJ.  Even if the information was not excluded by s 424A(3)(b) (a view I do not hold), the Tribunal nevertheless provided the appellant with adequate opportunity to comment on the information.  Finally, the information was not information within s 424A(1) of the Act.  It did not, in its terms, constitute a rejection, denial or undermining of the appellant’s claims to be owed protection obligations:  SZBYR 235 ALR 609 at [17].  Accordingly, there was no breach of s 424A of the Act.  This ground of appeal is dismissed.

Ground of appeal 2: apprehended bias

13                  The appellant’s second ground of appeal claims that “the Tribunal is biased in making the decision”.  According to the appellant’s Notice of Appeal, this was because the Tribunal relied on the fact that the appellant was unable to demonstrate the five fundamental exercises of Falun Gong and thereby determined that the appellant had limited knowledge of Falun Gong.

14                  In order to establish bias, it is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”:  Jones v Australian Competition and Consumer Commission (2004) 76 ALD 424 at [100].  In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435, the High Court explained the test for apprehended bias in administrative proceedings in the following terms:

The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

(References omitted.)

See also Chey v Minister for Immigration and Citizenship [2007] FCA 871; Rana v Australian Federal Police (2006) 44 AAR 151 at [49]-[50]; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL (1986) 161 CLR 342.

15                  Even a reasonable apprehension of bias must be firmly established.  As the Federal Magistrate stated, it is a serious allegation, and must be strictly proven: SBBF [2002] FCAFC 358; SBBS [2002] FCAFC 361.

16                  There is no basis, let alone a firm basis, to make good a claim of apprehended bias on the part of the Tribunal.  As the Federal Magistrate outlined, the appellant’s submissions are based upon a misconception of the Tribunal and its processes.  In this Court, the appellant must demonstrate that the Federal Magistrate failed to apply the correct principle.  He does not.  No error is revealed in the reasons of the Federal Magistrate.  This ground of appeal must also be dismissed.

Conclusion

17                  The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate.  I cannot identify an appellable error.  In my opinion, an appeal would have no prospects of success.

18                  For these reasons, the appeal should be dismissed and the appellant should pay the first respondent’s costs fixed in the sum of $1,900.

Associate:

Dated:         28 May 2008