FEDERAL COURT OF AUSTRALIA

SZNVM v Minister for Immigration and Citizenship [2010] FCA 261

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     The appellant is 29 years old and a citizen of the People’s Republic of China.  She claims to be a Falun Gong practitioner with a well-founded fear of persecution in her country of origin.  After arriving in Australia, she unsuccessfully applied for a protection (class XA) visa.  This is an appeal from a judgment of a Federal Magistrate dismissing her application for judicial review after she failed to persuade the Refugee Review Tribunal (the Tribunal) to overturn the Minister’s decision.  The only question here is whether the Federal Magistrate erred in failing to detect any jurisdictional error in the Tribunal’s decision.

Background

2                     The appellant arrived in Australia on 2 February 2009.  On 16 March 2009 she lodged her application for a protection visa with the Department of Immigration and Citizenship.  On 12 May 2009 a delegate of the first respondent (the Minister) refused the application.  On 4 June 2009 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant included with her original application a statement in English in which she claimed that her father had started practising Falun Gong in 2005 for health reasons and that he then slowly recovered, a recovery she attributed to the Falun Gong “method”.    Then, she alleged, the local authorities banned Falun Gong and insisted it was a cult.  Afterwards, she went on, the local authorities started to place “psychological pressure” on her father, and he was warned to discontinue practising it.  However, she allowed her father and others to practise at her home.  In December 2005, she stated, the appellant and her father were arrested by the local police, and were detained and questioned for 24 hours.  She said they were not given coats or any food.  She claimed her father was beaten and transferred to a detention centre. She asserted that her husband and her brother were frequently harassed and persecuted by the government, which interfered with their work and life.

4                     She said that because of this she and her family moved from their village home to Guangzhou city, a distance of 2,800km.  Later she said she heard about Australia’s religious freedom, and decided to seek protection here so that she could practise Falun Gong freely.  . 

5                     The appellant attended an interview with the Minister’s delegate on 23 April 2009 and was interviewed with the assistance of a Mandarin interpreter.  At the interview, the appellant provided new information that she had not put forward in her original application.  However, the delegate rejected the appellant’s claim because he was not satisfied that she had a well-founded fear of persecution.

Eligibility for a protection visa

6                     To qualify for a protection visa the appellant had to show that she was a refugee within the meaning of Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (Migration Act 1958 (Cth),s 36(2) (the Act)) and could satisfy the further requirements of s 91R of the Act.  In short, she had to show that she had a well-founded fear of persecution (that is, that there was “a real substantial basis” for it:  Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572), that her adherence to Falun Gong was the essential and significant reason for the persecution, that the persecution involves serious harm to her, and that the conduct was both systematic and discriminatory.  

The proceedings in the Tribunal

7                     The appellant sought review of the delegate’s decision on 4 June 2009 and on 19 June 2009 the Tribunal wrote to her (pursuant to its obligation under s 424A of the Act) inviting her to comment on or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision.  The Tribunal’s letter fastened on six issues, identifying instances where the information provided in her interview with the Minister’s delegate either conflicted with or was not mentioned in her original application.  The letter also identified one claim she had made at the interview that (it appears) the Tribunal regarded as implausible, namely that when she started practising Falun Gong (in 2005) she did not know that it was banned and that she only became aware it was banned when local authorities became aware of her practice.  The Tribunal’s letter informed the appellant that these issues might cause the Tribunal to doubt her credibility.

8                     On 14 July 2009 the appellant replied in writing, providing an answer point by point to the Tribunal’s concerns.  Her reply also enclosed a document in Chinese, entitled (in Chinese) “Public Security Administrative Verdict Punishment Verdict”, dated 6 December 2005, apparently corroborating her claim to have been detained for 24 hours in December 2005 and stating that she was fined 3,000 RMB.

9                     The appellant attended a hearing at the Tribunal on 16 July 2009 and  was again assisted by a Mandarin interpreter.  It considered her evidence and other material it found for itself, including information from the website of the Falun Gong, books about Falun Gong, country information reports from Federal Government departments and reports from, amongst others, the US State Department, Amnesty International and Human Rights Watch.  Those reports established that the Chinese Government had outlawed Falun Gong in 1999 (not 1996, the date the appellant gave  at the hearing), considered it a cult and organised a crackdown on its followers, which was ongoing.  They also contained advices about a high incidence of fraudulent documentation in China apparently facilitated by corrupt local officials.  A 2000 Department of Foreign Affairs and Trade advice reported that:

any official document can be either bought or forged in China.  Irregular or improper issue of documentation is widespread.  Thus, we would suggest that little evidentiary weight can be placed on any official Chinese document…

10                  The Tribunal found that the appellant completely lacked credibility, pointed to significant inconsistencies in her evidence, which, when brought to the appellant’s attention caused her to come up with yet a different account, noted she was often evasive in her responses to its questions, at other times gave confusing evidence, and that in some respects her account was implausible.  These factors combined to lead the Tribunal to find that the appellant had been untruthful in her evidence.

11                  In relation to the document which the appellant had sent  to the Tribunal  and which appeared to corroborate her claim that she had been detained in 2005,the Tribunal noted its concern that the document had not been submitted with her original application and was unimpressed with the appellant’s explanation for its late appearance. Given that the Tribunal had found that the appellant had been untruthful in her evidence, and having regard to the independent information before it which suggested the widespread availability of fraudulent documents in China, the Tribunal decided that the document was not genuine.

12                  For these reasons, the Tribunal rejected the entirety of the appellant’s claims. In particular, it rejected her claims to have ever practised Falun Gong in China, that she had ever had any association with any person who did, including her father, or that she came to the adverse attention of the authorities for the reasons claimed. The Tribunal accepted that the appellant had engaged in Falun Gong activities since arriving in Australia.  However it was not satisfied that she had engaged in Falun Gong activities otherwise than for the purpose of strengthening her claim to be a refugee and therefore disregarded this conduct pursuant to s 91R(3) of the Act.

13                  Thus, the Tribunal concluded that there was no real chance that the appellant would be subject to serious harm amounting to persecution for a Convention reason if she were to return to China now, or in the reasonably foreseeable future, and affirmed the decision under review.

The application to the Federal Magistrates Court

14                  By application filed in the Federal Magistrates Court of Australia on 17 August 2009 the appellant sought judicial review of the Tribunal’s decision.

15                  In her application the appellant expressed her grounds of review as follows (without alteration):

1.         I cannot go back to China.  I will be persecuted by the Chinese Government.

2.         RRT considered my case unfairly.  They doubt my claim without substantive evidence.

3.         Procedural fairness has been denied by RRT.

16                  The jurisdiction of the Federal Magistrate to interfere with the Tribunal’s decision is extremely limited.  Section 474 of the Act (in combination with s 5) classifies such decisions as ‘privative clause decisions’.  They may be challenged, but only if it can be shown that they are affected by jurisdictional error, that is, where there has been either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.  In some cases a failure to observe a procedural or other requirement of the Act may amount to such an error but the tricky question in many cases is in deciding which errors are within jurisdiction and which are not.  In each case it is necessary is to look to the language of the relevant provisions of the Act and the scope and object of the Act as a whole and decide what are the limits and restraints found in it to determine whether the Parliament intended that a decision marked by a particular error would render the decision a nullity, because that is the effect of a decision tainted by jurisdictional error (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597).  See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [72] per McHugh J, [173] per Kirby J, [205] per Hayne J.    Such a test is generally easier to articulate than it is to apply.  (compare SAAP at [73] per McHugh J).  Nevertheless, a failure to comply with a mandatory or imperative obligation will generally suffice.  So, too, will a breach of the rules of procedural fairness. 

17                  Raphael FM heard from the appellant but was unimpressed with her appeal.  His Honour was satisfied that the Tribunal had complied with all of its obligations under Part 7 Division 4 of the Act, which, he said, codifies the Tribunal’s procedural fairness obligations to an applicant. His Honour also stated that the Tribunal considered all the claims raised by the appellant.  He noted its detailed and careful reasons and its attention to the appellant’s contentions, and concluded that it reached “a logically expressed view based on available evidence”.  He held that it was open to it to reject the appellant’s claims and the document provided by the appellant in support of them in light of the independent country information.  He emphasised that

[i]t is the strength of the applicant’s evidence that is important because the Tribunal is not in the position of a contradictor and so … it is for the applicant to provide the substantive evidence that those claims are genuine and bring her within the Convention.

18                  Notwithstanding the appellant’s understandable grievance, his Honour (correctly) observed that whether or not her evidence should be accepted was not a matter for him but for the Tribunal, and the Court could not substitute its own views.  

19                  He found no jurisdictional error in the Tribunal’s decision and therefore dismissed the application.

Appeal to this Court

20                  On 31 December 2009 the appellant filed in this Court a notice of appeal from the decision of the Federal Magistrate.  It pleaded the following grounds of appeal (without alteration):

(1)        RRT had bias against me and did not make fair decision for my application

(2)        I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

(3)        I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes Falun Gong practitioners.

Submissions of the appellant

21                  At the hearing the appellant, through an accredited interpreter, urged me to remit her case to the Tribunal for another hearing, protesting, in effect, that she was a genuine refugee.  This is what she said:

APPELLANT: I hope your Honour could believe me because RRT and the Federal Magistrates Court did not believe my case. At that time, because I didn’t make the days correctly, the member of RRT did not believe my case. The member - the tone of the member was very harsh. I hope your Honour could believe me and give me another chance. Before, they didn’t really deal with my case correctly, they just reject my application promptly.

HER HONOUR: Who’s “they”?

APPELLANT: The member of RRT. The tone of the member was harsh. If I went back to China I would be prosecuted. I was beaten up when I was arrested and detained. I feel I’m afraid of going back to China because to practise Falun Gong is prohibited in China. If I went back to China they would interfere with my practise of Falun Gong. They would detain me and they would deprive me of my freedom. I hope your Honour could give me another chance. Please let me stay here so that I can practise Falun Gong here. At that time, the member of RRT said I didn’t make the days correctly but there is a lunar calendar as well as a solar calendar in China, that’s the reason I didn’t make it correctly. They didn’t deal with my case correctly. I’m afraid of going back to China, I’m afraid of being prosecuted if I go back.

HER HONOUR: Is that all you wanted to say?

APPELLANT: Yes.

22                  On specific questioning the appellant sought to support the first ground (bias) in the following way:

It says, at that time, she was discriminating me. The tone wasn’t right. At that time, I made a mistake in the dates. It should be the spring of 2005 but I said it was December 2005, regarding this issue we had a lengthy discussion.

23                  When asked with respect to the third ground why she said that the Federal Magistrate did not consider her application reasonably, she replied: “because my case was rejected at the hearing”.  She later clarified what she meant by indicating that her grievance was that the Federal Magistrate delivered judgment immediately after hearing from the parties.

Nature of appeal

24                  The appeal is in the nature of a rehearing.  Still, the appellant must point to an error on the part of the Federal Magistrate.  See SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 and the authorities referred to there.

Consideration

25                  I turn now to consider the grounds of appeal.

No need to consider whether leave is required to argue the bias point

26                  The respondent argues that this ground was not raised in the Federal Magistrate’s Court and leave is required.  Yet the third ground pleaded before the Federal Magistrate was a denial of procedural fairness. The Federal Magistrate noted in his reasons that this ground was not particularised and proceeded to deal with the allegation as though it were an assertion that the appellant had not received a proper hearing.  He observed that the Tribunal’s requirement to provide an applicant with procedural fairness was set out in the Act (Part 7 Division 4).  However, Division 4 relates only to the hearing rule.  Procedural fairness, of course, has two limbs: the right to be heard and the right to an impartial adjudicator.

27                  No transcript or other record of the Tribunal hearing has been provided.  It can be inferred from his Honour’s reasons that the bias argument was not articulated.  But it cannot necessarily be said that it was not raised.

28                  The question whether an appellant should be permitted on an application for judicial review to raise a point that was not argued before the primary judge has been considered in a number of decisions of this Court.  I do not propose to deal with them here.  Rather, as the question was arguably raised before the Federal Magistrate (even if his Honour did not appreciate it) and as the appellant has at all times been unrepresented, I intend to deal with the argument on its merits as if leave were not required.  It transpires that there is no substance to the allegation of bias and, for this reason, the question of whether leave is required is academic.

No substance to bias allegation

29                  Bias refers to a predisposition towards or prejudice against one party’s case or evidence for reasons unconnected with the merits: Flaherty v National Greyhound Racing Club Limited [2005] EWCA Civ 1117 at [28].  Bias can arise for a number of reasons.  Here, the type of bias alleged is prejudgment.

30                  Bias in the form of prejudgment, connotes a state of mind “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented:”  Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17;(2001) 205 CLR 507 at 532 [72] per Gleeson CJ and Gummow J.  

31                  For an allegation of actual bias to succeed it must be “distinctly made and clearly proved”: Ibid at 531 [69].  It is a heavy burden and it has not been discharged here.  The submission the appellant made from the bar table that “the tone of the member was very harsh”, even if supported by sworn evidence to that effect, without more, cannot establish bias.  The appellant did not elaborate on her contention.  No recording of the proceeding was tendered.

32                  The appellant also argued that the member “didn’t really deal with [her] case correctly, just reject[ed]” it.  This argument also relates to the third ground of her appeal.

33                  There is nothing to support the conclusion that the Tribunal member was (subjectively) biased.

34                  Absent actual bias, the question arises as to whether there has been ostensible or apprehended bias.

35                  In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434-5 [27]-[32] (Ex parte H) the High Court (Gleeson CJ, Gaudron and Gummow JJ) said this:

[27] 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.

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

[29] 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.

[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

[31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. (footnotes omitted)

36                  In that case the Court allowed an application for prerogative writs under s 75(v) of the Constitution.  It did so with the benefit of a transcript of the proceedings.  It concluded that a fair-minded lay observer or a properly informed lay person “might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account…” (Ex parte H at 435 [32]).

37                  Here, however, the evidence is lacking.  The appellant did not complain that she was constantly interrupted, that her will was overborne or that she felt intimidated, let alone present the Court with any proof.  Her complaint was about the member’s tone, something upon which she never elaborated.  In any event, even if the appellant could prove that the tone of the questioner were “harsh”, as Gleeson CJ, McHugh, Gummow and Hayne JJ observed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8]:

[t]he apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits …

38                  There is no logical connection between harshness of tone in a member’s questioning and an inability to bring an open mind to the resolution of the issues in a case, particularly where it is to be expected that the Tribunal will probe the witness’s answers to test the truth of the account being offered to it. 

39                  Hostility on the part of a decision-maker towards a party would vitiate a decision for actual bias and hostile questioning could certainly give rise to an apprehension of bias (see e.g. R v Magistrate Taylor; Ex parte Ruud (1965) 50 D.L.R. (2d) 444 and Barich v Health Care Complaints Commission [1999] NSWCA 444 where it was implicitly assumed that hostile questioning by a member of the Medical Tribunal could show bias but the Court found the questioning to be relatively unobjectionable).  Yet, there is no evidence of it here and it is doubtful in any event whether a harsh tone can be equated with hostile questioning. 

40                  The reasons given by the Tribunal member do not suggest that she might have prejudged the application.  As the High Court said in Ex parte H, the Tribunal is bound to test the assertions of an applicant.  In an inquisitorial proceeding vigorous questioning on the part of the decision-maker does not amount to bias or necessarily create an apprehension of bias.  The context is critical:  Flaherty v Greyhound Racing Club Ltd (above) at [29]. As Branson J said in SWDB v Minister for Immigration and Citizenship [2007] FCA 1636 at [23]:

Mere discourtesy or abruptness, particularly when not of a severe character, does not give rise to a reasonable apprehension of bias.

41                  Further, the Tribunal dealt at length and with some care with the appellant’s contentions.  There is no support for the submission that the member did not deal properly with the appellant’s case before rejecting it.

42                  Ground 1 is not made out.

Ground 2: I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

43                  This ground raises no question of jurisdictional error.

Ground 3: I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese Government persecutes Falun Gong practitioners.

44                  The appellant’s concern in this case was that the Federal Magistrate did not reserve to consider his judgment.

45                  The delivery of judgment at the conclusion of submissions does not of itself show that the application was not “considered reasonably”.  As Sackville J said in SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 at [39]:

it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed.  There are obvious reasons why such a course is desirable.  Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision.  Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload.  The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant.

46                  As this was the only argument the appellant advanced in support of her contention that the Federal Magistrate did not consider her application reasonably, this ground must also fail.

Conclusion

47                  The Tribunal found that the appellant was completely lacking in credibility and concluded, in effect, that it could put no weight on the apparently official document that on its face corroborated her account that she had been arrested and fined.  Some of her evidence the Tribunal found to be implausible.  It was replete with inconsistencies. They are well exposed in the Tribunal’s decision.  The decision is well reasoned.  The view the Tribunal reached was certainly open to it.  A challenge based on jurisdictional error must fail.

48                  As Gummow and Hayne JJ observed in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 577-8 [191] genuine refugees “engaged in an often desperate battle for freedom, if not life itself” may succumb to the temptation to embellish their claims and even to lie.  Yet,

those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

Orders

49                  For the above reasons the appeal should be dismissed with costs. 

Associate:

Dated:         23 March 2010