FEDERAL COURT OF AUSTRALIA

SZSQS v Minister for Immigration and Border Protection [2014] FCA 219

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellant pay the first respondent’s costs as agreed or, if not agreed, as assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of Judge Driver of the Federal Circuit Court delivered on 19 September 2013. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 11 February 2013: SZSQS & Ors v Minister for Immigration & Anor [2013] FCCA 1180. The Tribunal affirmed the decision of a delegate (Delegate) of the first respondent (Minister) made on 27 June 2012 not to grant the appellants’ application for Protection (Class XA) visas (protection visas) pursuant to s 65 of the Migration Act 1958 (Cth) (the Migration Act).

2    The appellants are citizens of the People’s Republic of China (China) who arrived in Australia on 28 January 2012 on Subclass 676 Tourist (short stay) visas, as part of a tour group. They left their tour group upon arrival and lodged their applications for protection visas on 6 February 2012.

3    The first appellant (wife) claims protection on the basis of her participation in the Local Church (also known as the Shouters) since 2010 and her arrest and detention in China as a consequence of her involvement with the church. The second appellant (husband) and third appellant (son) claim protection on the basis of their association with the wife and their own religious beliefs. The son will turn 18 years old in mid-2014. The appellants claim to have continuously attended the Local Church in Australia and that they will be unable to practise their faith if they return to China.

The Decision of the Tribunal

4    On 11 February 2013 the Tribunal affirmed the decision of the Delegate not to grant the protection visas. The appellants gave oral evidence at a hearing on 11 January 2013. Their migration agent, Mr Harry Huang, was also present at the hearing.

5    At [95] of the decision record, the Tribunal accepts that:

     The husband and wife owned and operated a stationery business in China which was registered only in the husband’s name;

    The husband incurred gambling debts which caused him and the wife to feel ashamed and that they had “lost face” among their community; and

    Their high regard for how they are viewed by their community caused the wife to feel so ashamed that she wanted to leave China and led the husband to live and work in a different province from his wife and son in an effort to rebuild and repair his reputation and restore “face”.

6    The Tribunal outlines at [93]-[113] of its decision record several areas of concern with the evidence presented by the appellants in support of their claims to have a well-founded fear of persecution. In relation to the wife, the primary issues identified were, in brief:

    The wife’s unprompted admission to the Tribunal that she made a mistake in her interview with the Delegate: she indicated she had erroneously said that the gatherings in China took place on Saturday and Sunday rather than Tuesday, Thursday and Sunday as she had initially claimed in her written statement. She claimed to have mistaken the question as being directed to church attendance in Australia. The Tribunal thought that this inconsistency cast doubt on her claim to have attended church at all in China.

    The wife’s claims to suffer from nervousness, dizziness and low blood pressure since being released from prison in China, in the absence of any medical documentation.

     The wife’s evidence concerning her consciousness of how she was viewed by the community, which the Tribunal considered inconsistent with membership of an “illegal cult” in China, given the potential social stigma and adverse repercussions of such activity.

    The credibility of the wife’s evidence about her lack of awareness that Shouter activities were illegal in China: she said the gatherings moved locations and the church members were told to speak in quiet voices, she said her husband raised the issue of whether the gatherings were legal after she told him she had started attending them, and she made reference to “secret meetings” in her written statement which accompanied the visa application. The Tribunal also did not think it credible that a “kind lady” and long-term friend who wanted to help the wife would not warn her at the outset that the gatherings to which she introduced the wife were illegal. The Tribunal considered that the wife’s claim not to know cast doubt on her participation at all in the Local Church in China.

    The credibility of the wife’s claim that she was persuaded by the “simplistic” “evangelising” on the part of the church member who converted her, given the risk the religion posed to her business interests, marriage and the safety of herself and her family.

    The credibility of the wife’s claim to be a leader in the Local Church despite the relatively short time she had been a member of the church.

    The credibility of the wife’s description of how the appellants found accommodation in Australia (with a woman they met at a supermarket late at night on the day of their arrival), which the Tribunal considered “evasive” and “far-fetched”.

    The credibility of evidence concerning how the appellants were able to leave China despite the claimed adverse interest by the Chinese authorities.

7    The Tribunal was not satisfied that the wife participated in or was a leader of the Local Church in China or that she was arrested, detained or harmed for that reason. It was not satisfied that any of the appellants had a well-founded fear of persecution. The Tribunal did accept that they had attended Local Church activities in Australia but did not accept that this was for any purpose other than improving their refugee claims. The Tribunal nonetheless considered their claims to complementary protection but did not accept that there was a real chance that they would suffer significant harm if returned to China.

The Federal Circuit Court

8    The appellants filed an application in the Federal Circuit Court on 13 March 2013. Although there were four grounds of review set out in the application, the primary judge considered that there were only two real grounds of review, being Ground Two and Ground Three (formatting as in the original):

2.    The Tribunal’s conduct of proceedings and conclusion was such that a reasonable person would apprehend them to be encumbered by bias, and thus not an effective decision that is protected by Section 474.

Particulars

i.    The Tribunal “come what may” refused to accept that the Applicant was being persecuted by the Chinese Government for being a member of a Christian religious group (The Shouters). See decision record generally and especially paragraph 99, 100, 101, 102.

ii.    The General finding of the Tribunal indicates on the balance of reasonableness that it was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented (Minister for Immigration V Jia (2001) 205 CLR 507). See decision generally and especially evidence of second Applicant.

iii.    The Tribunal refused to give the Applicants the “benefit of the doubt”.

iv.    Transcript to be particularised in submissions 14 days in advance of hearing.

…

3.     The Tribunal disregarded the fact that it is Specifically illegal for a person under the age of 18 to practice religion in China.

9    The primary judge rejected both grounds of review. I will deal with his treatment of Ground Two below, because it is the basis of the appellants’ appeal to this Court. No complaint was raised on appeal about the primary judge’s rejection of Ground Three. The primary judge found that it was a “complete answer to this ground” that it was never claimed before the Tribunal on behalf of or by the appellants that the third appellant had a well-founded fear of persecution on the basis that it was illegal for a person under the age of 18 to practise religion in China: see SZSQS at [38].

Appeal to the Federal Court

10    The appellants filed an amended notice of appeal on 15 October 2013. The grounds of appeal as set out by the appellants are as follows:

1.    The Federal Circuit Judge erred when he declined to admit evidence in support of the contentions of the Appellants.

Particulars

Paragraph 19

2.    The Federal Circuit Judge erred by making significant mistakes of fact.

Particulars

a.    The Federal Circuit Judge wrongly understood it to have been alleged that the “tone” of the Member, alone, constituted bias, this not being the contention before him.

b.    The Federal Circuit Judge significantly failed to correctly assess the conduct of the Member as disclosed on the tape before him.

3.    The Federal Circuit Judge erred when he allowed extraneous matters to guide him.

Particulars

Paragraphs 34 and 35

11    Both the appellants and the Minister were represented at the hearing of the appeal and both provided written submissions.

Ground One: failure to admit evidence

12    The primary judge’s rulings in relation to three affidavits tendered by the appellants were set out at [19] of SZSQS:

I also received an affidavit made by the first applicant on 29 May 2013 and an affidavit made by her migration agent, Harry Huang, made on the same day, which recount their concerns arising from their attendance at the Tribunal hearing. I received those affidavits simply as evidence of the expressed concerns, not the veracity of those concerns. I declined to receive a further affidavit by Kieran McArdle made on 20 August 2013. That affidavit had annexed to it a document setting out Mr McArdle’s opinions concerning the tone of voice used by the presiding member, which opinions he formed after listening to the sound recording of the hearing. While I declined to receive the affidavit, I accepted the document as an aide memoir for the purposes of my own listening to the sound recording.

13    At [1]-[4] of the wife’s affidavit she reiterated her claims and noted that Mr Huang, the migration agent who attended the Tribunal hearing with the appellants, had translated her affidavit. She went on to say:

[5]    The authorities in China did to me what I truthfully told the Tribunal member that they did.

[6]    The behaviour of the Tribunal member was hostile from the beginning. By “hostile” I mean that she acted as though whatever I said, or my husband or son said, she did not believe us.

[7]    I do not know why this was the case. I had never had any dealings with the Member concerned, or the Tribunal, before.

[8]    I cannot understand why the Member acted like they did right from the start.

[9]     When we related our story, the Member acted right from the beginning as though we were making it up. The Member acted like this, not after an hour or so, or after one or two of us had spoken, but straight away.

[10]    I wish to express love as a Christian towards the Member. Perhaps other people have lied to this Member, and the Member decided that I was going to be a liar as well. This could only have been decided “on sight”, because the attitude was from the beginning.

[11]    If the Member had listened to our truthful story, instead of obviously deciding in advance that we were not to be believed, we would not now be in this position of great danger.

[12]    My lawyer told me that the transcript speaks for itself, and must be read. On the other hand, I wanted to explain that the entire atmosphere of the hearing was that the Tribunal acted like it did not accept anything we were going to say before we said it. Nothing I or my agent could do would change the Member’s mind, which appeared to be made up.

14     Mr Huang’s affidavit affirmed that:

[1]    I was present at the RRT hearing on 11 February 2013.

[2]    I refer to the Affidavit of [SZSQS]. I say without reservation that the impression of [SZSQS] as shown in her affidavit is exactly my impression.

[3]     The Member on 11 February acted right from the beginning that my clients were not going to be believed.

[4]    I expected that the Member would listen to the evidence, and permit the story to come out. Unfortunately, almost immediately, the behaviour of the Member suggested to me that the proceedings were sort of an inconvenient procedure that had to be conducted before their application was rejected. I do not know why the member behaved like this.

[5]    I note the religious expressions of my client in her affidavit. This reflects her general demeanour when she is dealing with me. The impression she consistently gives is that she is genuinely religious.

[6]    In my opinion, the genuineness came out when she and her family were giving evidence. Unfortunately, the aggressive reaction of the Tribunal from the beginning was that they were making it up.

15    The appellants say that the point of their case was that it dealt with apprehended bias, not actual bias. Consequently, they submit that the affidavits of the wife and Mr Huang constitute sworn testimony (albeit not of a disinterested bystander), which could have been the subject of cross-examination and of use to the primary judge in determining whether procedural fairness had been accorded to the appellants. They say that the primary judge’s conclusions were therefore affected by the decision to admit the evidence on a limited basis only. They submit that while Mr Kieran McArdle is not a disinterested bystander, it was useful to have his impressions from reviewing the sound recording of the Tribunal hearing. It was open to the Department to have someone review the tape of the Tribunal hearing and form impressions of the Tribunal member’s conduct: that might have resulted in a remission to the Tribunal by consent, or the primary judge would then have been in a position to weigh their competing impressions. In argument, the appellants’ representative contended that the primary judge erred by making greater use of the affidavits than the limited basis on which he admitted them.

16    These submissions are entirely misplaced. As demonstrated by [19] of the primary judge’s reasons, he did not “decline” to admit the affidavits of the wife and Mr Huang: he accepted them on the appropriate limited basis. I do not accept that he used them inappropriately. While he did decline to accept Mr Kieran McArdle’s affidavit as evidence on any basis, the primary judge was plainly correct to consider that it had no probative value and its only possible use was as a submission as to how the primary judge might view the recording in making his own determination objectively, and that is how the primary judge used it.

17    The primary judge correctly informed himself of the law to be applied at [26]-[30] (footnotes incorporated into the text):

[26]    Apprehended bias will be made out where a hypothetical fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [29]–[31]). In deciding this issue, the Court on review is to determine the issue objectively (Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68] per McHugh J).

[27]    It is insufficient for the hypothetical fair-minded lay observer to have “a vague sense of unease or disquiet” (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424. An appeal from Justice Weinberg's decision was allowed, but the correctness of this proposition was not challenged by the Full Court: Jones v Australian Competition and Consumer Commission (2003) 131 FCR 216).

[28]    Consideration of the question of apprehended bias must take into account the legislative context in which a decision is being made (cf. NADH v Minister for Immigration (2004) 214 ALR 264 at 269 per Allsop J). In the context of the Tribunal, “robust and forthright testing of the [applicant's] claims by the Tribunal ... does not sustain a finding of apprehended bias” (SZRUI v Minister for Immigration [2013] FCAFC 80 (SZRUI) at [24] per Flick J and the cases there cited by his Honour). Further, the expression of tentative views will not itself give rise to an apprehension of bias, and may actually enhance the fairness of the administrative process by alerting an applicant to perceived deficiencies in his or her claim and affording him or her an opportunity to address those deficiencies (SZRUI at [27] per Flick J). Jurisdictional error will only arise where the expression of views by a decision maker either gives rise to a reasonable apprehension that the decision maker is really not prepared to change those views no matter what may be further said or in fact evidences a closed mind. What must be shown is more than a mere predisposition to a particular view; it is necessary to show a mind not being open to persuasion (Minister for Immigration v Jia Legeng (2001) 205 CLR 507 (Jia Legeng) at 531-32per Gleeson CJ and Gummow J).

[29]    Consideration of the question of apprehended bias must also take into account the whole of the transcript of proceedings, rather than sentences taken in isolation (SZRUI at [75] per Robertson J).

[30]    Occasional displays of impatience and irritation (justified or not), momentary outbursts and misunderstandings, and mere insensitivity will not necessarily lead to a reasonable apprehension of bias (VFAB v Minister for Immigration (2003) 131 FCR 102 at 126–27 per Kenny J; Re Minister for Immigration; Ex Parte AB (2000) 177 ALR 225 at 230). Similarly, “harsh tones” do not necessarily give rise to a reasonable apprehension of bias (SZNVM v Minister for Immigration [2010] FCA 261 at [31] per Katzmann J). In such cases, the entirety of the circumstances must be considered (SZRUI at [91] per Robertson J (see also [100])).

18    With the recording of the Tribunal hearing available to him, the decision as to whether the Tribunal hearing was affected by apprehended bias was for the primary judge to make on an objective basis having listened to the recording. In rejecting the allegations made in the affidavits, the primary judge did not fail to inform himself of the evidence as submitted by Mr McArdle: he rightly evaluated the evidentiary value of the affidavits and he did consider the other available evidence which he was obliged to consider in correctly applying the test of apprehended bias in accordance with the authorities and the submissions which were made. Given their nature, the concerns expressed by the wife and Mr Huang could not alone be determinative of these matters, whether or not they were subjected to cross-examination.

19    I accept the Minister’s submission that “[t]he appellants’ submissions on this ground of appeal are fundamentally at odds with the objective nature of the requisite inquiry for an allegation of apprehended bias … the inquiry does not involve resolution of competing evidence as to the proper characterisation of the Tribunal’s conduct of the review and its decision. … When the relevant inquiry is properly understood, the views of the first appellant, her agent and Mr McArdle were not probative of the issue that the court below had to determine.”

20    I reject this ground of appeal.

Ground Two: Significant mistakes of fact

21    The appellants say the primary judge erred by overlooking their argument that the Tribunal’s decision record revealed apprehended bias. They submit he made his decision based on arguments concerning the “tone” employed by the Tribunal member at the Tribunal hearing alone, which was not the appellants’ case. They referred the Court to their written submissions to the primary judge. The appellants say that although “tone” may well have been discussed in open court, and is effectively referred to in the evidence of the wife, Mr Huang, and in particular Mr Kieran McArdle, a fair-minded observer would consider every aspect, and “most especially the construction of, and underpinning attitude apparent in the [Tribunal’s] Decision [record], in forming that apprehension (beyond “vague disquiet”).”

22    In their written submissions to the primary judge, the appellants said, among other things:

The Member showed himself to be enthusiastic from the beginning to “not believe”. This attitude is shown in the statement whereby he embraces a restrictive principle at the beginning of his deliberation:

89: The mere fact that a person claims fear of persecution or significant harm for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded”, or that it is for the reason claimed. It remains for the Applicant to satisfy the Tribunal that all of the statutory elements have been made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the Applicant himself or herself, in as much detail as is necessary to enable the examiner to establish relevant facts. A decision maker is not required to make the Applicant’s case. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.

That is certainly the law. It is not to be applied in the way the Member applied it, however. It does not mean that “If a person says it, we must assume it to be false”. It does not mean that “In the absence of unavoidable corroborated evidence, nothing said is to be believed”. It does not mean, “Whatever detail you provide, I will always want more“. In not “being required to make the Applicant’s case” we must not adopt the meaning, “We have a license to circle and attacked the Applicant’s case as though the Tribunal is an advocate for the opponent of the Applicant.” “Not being obliged to accept uncritically any and all of the allegation made by an applicant” does not mean, “entitled at the Tribunal’s discretion to decide to not accept anything the Applicant says, and to do so from the outset”. Nor is there an implied or express term in the Statute that imposes on a refugee applicant the same standard of presentation that would apply to a trained lawyer.

Apprehended Bias:

We refer the Court to the Evidence of the first Applicant. Her evidence is that of a person who was denied a hearing.

…

A fair minded lay observer in this case would be stunned by the level of prejudgement and hostility attested to. It is necessary to absorb the “findings” from about paragraph 90 and following in this respect. They read like a submission rather than a consideration. The “aha” principle is often invoked (see for instance, paragraphs 99 and 100). This is highly reflective of the demeanour attested to by the two witnesses. They saw the behaviour, and it was manifested in the decision.

It is very clear on the evidence that “a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of pre-judgement, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view”.

The Member in this matter, was committed to an outcome, and in so doing, disregarded facts that were put before him.

23    It is correct that [89] of the Tribunal’s decision record is an uncontroversial summary of the authorities. I also agree that [89] does not stand for the propositions in the paragraph which follows the excerpt of [89] in the appellants’ written submissions. These submissions cannot otherwise be sustained. Ground Two cannot be made out. I will deal with the “particulars” of Ground Two in reverse order.

Particular b: the Federal Circuit Court Judge significantly failed to correctly assess the conduct of the Tribunal member as disclosed on the tape before him

24    Like the primary judge, having read the transcript of the Tribunal hearing, I can see nothing inappropriate or indicative of prejudgement in the questions asked by the Tribunal member or the conduct of the interview. The early part of the transcript comprises introduction of the interpreter, an explanation of the process and simple fact finding. Later parts test with the appellants aspects of their claims and evidence which the Tribunal might find as a reason, or part of a reason, for the Tribunal to affirm the decision of the Delegate. I see nothing wrong with the Tribunal member asking two of the appellants to wait outside while evidence was given by the third. There are occasions on which the Tribunal member indicated that the member might disbelieve one of the appellants. That is not necessarily inappropriate in an inquisitorial process: see Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [31]-[32]:

[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.

25    I note that the appellants had a migration agent present at the Tribunal hearing. Neither of Mr Huang or the wife asserted that any of the appellants was unable or unwilling to provide evidence at the Tribunal hearing, nor would the transcript support such a proposition. No submission was made to that effect to this Court, although the written submission to the primary judge asserted that the appellants had been denied a hearing.

26     At [21] and [31]-[32], the primary judge said (footnotes omitted):

[21]    The applicants contend that the sound recording of the Tribunal hearing supports a contention of apprehended bias, not because of what was said in terms of the words used but because of the tone of voice used by the presiding member. Because of the nature of the allegation, the transcript was of no real value in dealing with it. It was necessary for me to listen to the sound recording. I did so.

…

[31]    Notwithstanding what is claimed in this ground of review, there is nothing in the Tribunal’s decision to support an apprehension of bias. In any event, it will be a rare case where the decision itself demonstrates an apprehension of bias. As noted above, there is also nothing on the face of the transcript of the Tribunal hearing to give rise to any concern. The applicants’ allegation is that the presiding member’s tone supports an apprehension of bias. The first applicant says in her affidavit that her impression was that “right from the beginning” the member thought that the applicants were making up their claims. In his affidavit, Mr Huang says:

Unfortunately, almost immediately, the behaviour of the Member suggested to me that the proceedings were sort of an inconvenient procedure that had to be conducted before their application was rejected. I do not know why the member behaved like this.

…

In my opinion, [the genuineness of the first applicant] came out when she and her family were giving evidence. Unfortunately, the aggressive reaction of the Tribunal from the beginning was that they were making it up.

[32]    The document prepared by Mr Kieran McArdle, which I used as an aide memoir when listening to the sound recording, refers to the tone of the member as at times patronising, disbelieving, aggressive, discrediting, accusing, disrespectful and suspicious. I listened to the entirety of the sound recording. It is hard to credit that I was listening to the same sound recording as that referred to in the document prepared by Mr McArdle, or the same hearing as that referred to by the first applicant and Mr Huang. The one remarkable thing about the tone of voice of the presiding member in the sound recording is that it barely varied at all. The presiding member’s tone was neutral, even flat. She was entirely unemotional. She was simply gathering information and recording it. The presiding member, at times, sought clarification of evidence provided by the first applicant in particular where it was unclear or where non responsive answers had been provided. Towards the end of the hearing, the presiding member alerted the applicants to the issues about which she was concerned, including the issue of the purpose of their religious practice in Australia. That was proper, even necessary for procedural fairness. There is nothing whatsoever in either the transcript or the sound recording to support any suggestion that the presiding member did not bring an unprejudiced mind to bear upon the review.

27    The “tone” of the Tribunal member and the conduct of the Tribunal hearing undoubtedly were significant elements of the appellants’ case before the primary judge and it was necessary and appropriate for the primary judge to consider “tone” in deciding a case based on apprehended bias.

28    As can be seen, the primary judge listened to the sound recording of the hearing which ran for 3 hours 19 minutes and 38 seconds. He considered the Tribunal’s decision record, and noted that it would be a rare case in which a decision record alone demonstrated apprehended bias, which is an approach consistent with the authorities. He noted the complaints of Mr Huang and the wife which are generalised claims about the Tribunal’s conduct. He also used as an aide memoire the affidavit of Mr Kieran McArdle which set out particular statements of the Tribunal and the appellants at the Tribunal hearing and characterised the “tone” used by the Tribunal member.

29    I see no basis on which the primary judge’s fact finding is plainly wrong, and I therefore accept his assessment of the “tone” of the Tribunal member. Further, if the primary judge’s assessment of the “tone” employed by the Tribunal member is accepted, then the conduct of the Tribunal member reflected in the passages which are set out in Mr Kieran McArdle’s affidavit is unexceptional in light of the authorities. This is especially so because neither the wife nor Mr Huang gave evidence that the actions of the Tribunal member prevented the appellants from giving evidence or making arguments at the Tribunal hearing. I reject the appellants’ submission that the Tribunal’s questions amounted to more than “robust testing”; I reject that they constituted “searching out error” and “assumption of falsehood, despite the evidence being sworn”. The Tribunal did put to the appellants matters which required clarification and gave them an opportunity to comment on matters which might have led the Tribunal to affirm the Delegate’s decision: the Tribunal was obliged to do that under the Migration Act.

Particular a: The Federal Circuit Court Judge wrongly understood it to have been alleged that the “tone” of the Member, alone, constituted bias, this not being the contention before him.

30    The primary judge did consider the Tribunal’s decision record as part of the appellants’ apprehended bias case, albeit that he did not refer to it extensively: see [31] of SZSQS quoted at [26] above.

31    Ground Two of the application to the Federal Circuit Court complains specifically about paragraphs [99]-[102] of the Tribunal’s decision record as being reflective of the Tribunal’s prejudgement and hostility. They are as follows:

99.    This concern is compounded by the following contradictions. The first applicant informed the Tribunal that she did not realise the Local Church gatherings she was attending were illegal or unregistered and that she didn’t think to ask [named person AB] about this as “she didn’t think in that direction”. However, she also gave evidence that: [AB] instructed attendees to keep their voices down so other would not hear them singing and praying aloud; the location of the gatherings frequently changed. Yet she also claims that these factors did not prompt her to suspect that the gatherings were not registered and not lawful, nor to ask her good friend, [AB], if this was the case. The Tribunal does not consider this to be credible in the context of the first applicant’s demonstrated interest and concern for how she is viewed in her community.

100.    While claiming on the one hand that she did not become aware that the gatherings she was attending were illegal, nor turn her mind to that possibility, until after she became a believer, she contradicted this by also stating that, when she told her husband about attending these gatherings he told her to check if they are legal or not. Her written statement also makes clear reference to her attendance at “secret meetings”, casting further doubt on her claims to have not known that that [sic] the gatherings she claims to have attended in China were illegal, until after she became a believer. The Tribunal considers the “secret” nature of the meetings would have alerted the first applicant to their unregistered nature if she did in fact attend such gatherings, and does not accept that, if she was attending Local Church gatherings, she would not have known from the outset that they were considered illegal in China and that they must be kept discrete to protect all attendees, including the first applicant, from detection and harm. That the first applicant claims to have been oblivious to this at the outset casts significant doubt on the truth of her claim to have ever attended or otherwise participated in the Local Church in China.

101.    Casting further doubt on the first applicant’s claimed belief and participation in the Local Church in China is her evidence regarding how she came to believe in the faith of the Local Church. Her claim is that, when she was upset about her husband’s gambling, [AB] helped her financially and evangelized to her. However, when asked to elaborate on what [AB] said to her when evangelizing which made her want to attend gatherings, she responded only that that [sic] she told her to pray to Lord Jesus, that human power is limited and God controls everything. She stated that [AB] said nothing more than that. The Tribunal considers, however, that such “evangelizing” and notions of God and the Lord Jesus would have little if any meaning for or persuasive impact on a person such as the first applicant who, on her own evidence, was not from a religious family, was not brought up in any religious tradition, and had not demonstrated prior involvement with Christianity but for hearing a former colleague speak about the gospel at a time when the first applicant claims she had no interest in the gospel. The Tribunal is not persuaded on the evidence before it that such simplistic “evangelizing” would persuade the first applicant to risk her business interests, marriage, safety and that of her family to attend unregistered gatherings of a religion considered an illegal cult in China.

102.    Further, while claiming that she was, by the time of her arrest on 6 November 2011, a leader of the Local Church in China, when the Tribunal put to her its understanding that elders of the Local Church are appointed based on their spiritual maturity and asked how she was determined to have the spiritual maturity to be a leader or organiser of the Local Church in China, she offered only that [AB] considered her ready one or two months after her baptism (83) but she is not sure why. The Tribunal considers this simplistic account of how and why she became a Local Church leader in China to be unconvincing.

32    These paragraphs appear under the heading “Findings and Reasons” and a sub-heading of “Assessment of the first applicant’s claims”. They are part of a record of how the Tribunal weighed the wife’s evidence after all of the evidence had been received and express part of the Tribunal’s reasons for its assessment of the credibility of the wife and her claims at the end of the process contemplated by the Migration Act. The decision record must, under s 430(1)(b) of the Migration Act, set out the Tribunal member’s reasons for the decision. It is difficult to see how this part of a decision record, standing alone, can be susceptible of an allegation of apprehended bias – it is too late in the process: it is the judgement of the Tribunal member, it does not reveal prejudgement. I do not accept the appellants’ contention that these paragraphs read like a submission rather than consideration of the wife’s claims.

33    Further, while not everyone might have adopted the Tribunal’s reasoning or findings in these paragraphs, they are not irrational or illogical. The Tribunal member considered matters put in evidence by the appellants and the findings were open to the Tribunal. The Tribunal is not obliged to accept the evidence put to it uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; and it is not required to have contradictory evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J

34    On a fair reading of the transcript of the Tribunal hearing and of the Tribunal’s decision record as a whole and having regard to the primary judge’s finding of fact about the “tone” of the Tribunal member revealed on the sound recording of the hearing, the appellants have not made out the claim that the Tribunal was determined to find against their application “come what may” or that there is any reasonable apprehension of bias based on those materials.

35    I accordingly reject Ground Two of the appeal.

Ground Three: Extraneous matters

36    Ground Three relates to comments made by the primary judge in SZSQS at [34]-[35] (footnotes omitted):

[34]    I place on record my concern that this is not the first time that wholly unsubstantiated allegations of this nature have been made against members of the Tribunal. Essentially the same allegation was made recently in SZSNU v Minister for Immigration & Anor. I note that in that case the legal representation of the applicant was the same as in this case. Judge Manousaridis said this of the apprehended bias claim in SZSNU:

The tone by which the words recorded in the transcript were expressed confirms and reinforces what the transcript reveals. I have listened to the audiotape of the hearing in its entirety, paying specific attention to those parts of the tape the applicant claims manifest a tone that might give rise to a reasonable apprehension of bias. I am firmly of the opinion that nothing said by the Tribunal as recorded by the audiotape can even arguably be contended to suggest the Tribunal expressed words in any of the tones the applicant claims the Tribunal used when expressing such words. It is not apparent from anything submitted by the applicant how it could reasonably be contended the Tribunal member expressed any words in the tones in which Mr Kieran McArdle in his affidavit swore the Tribunal expressed them.

[35]    I share his Honour’s opinion in this case. Some time ago I urged restraint on the part of legal practitioners in making allegations against Tribunal members. Unfortunately, it is necessary for me to reiterate that call for restraint. If this Court needs to deal with unsupported (and insupportable) allegations on the basis that they are frivolous, embarrassing or vexatious, it will do so, including in relation to costs orders.

37    The appellants point out that no submission made by the Minister gave rise to these comments. In particular, the Minister did not draw to the primary judge’s attention the cases referenced in those paragraphs and they were not the subject of argument before the primary judge. The appellants further submit that the matters raised before the primary judge were underpinned by sworn evidence, but “[u]nfortunately, His Honour did not inform himself of the evidence and dismissed the identified contentions as “unsubstantiated allegations”.”

38    The appellants relied on the famous dictum in House v R (1936) 55 CLR 499 (House) per Dixon, Evatt and McTiernan JJ at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

39    The appellants submitted that the primary judge’s attitude to the appellants’ representative, Mr Chris McArdle, infected his attitude to the appellants’ case and accordingly he relied on an irrelevant matter or wrong principle in making his decision to dismiss the appellants’ application for judicial review.

40    I accept the Minister’s submission that it is apparent from the structure and content of the primary judge’s reasons that his concerns about the manner in which Mr McArdle conducted the appellants’ application to the Federal Circuit Court formed no part of the primary judge’s consideration of the appellants’ case. Rather, the primary judge made comments following detailed and careful consideration of the legal principles to be applied and the primary evidence of the sound recording of the Tribunal hearing and Tribunal’s decision record. He took account of the affidavits of the wife and Mr Huang as evidence of their concerns, and he used Mr Kieran McArdle’s affidavit as a submission relevant to his assessment of the sound recording of the Tribunal hearing. I am satisfied that the primary judge’s reasons are a fair reflection of his thought process: it is only after he gave due consideration to and disposed of the appellants’ arguments that the primary judge took the opportunity to comment on aspects of Mr Chris McArdle’s conduct which caused him concern.

41    The affidavits of Mr Huang and the wife did not “substantiate” the appellants’ claim of apprehended bias: standing alone they would never have been sufficient to found a claim, although the primary judge did not err in admitting them as evidence of their concerns. After consideration of the decision record (including in particular [99]-[102]) and the transcript of the Tribunal hearing and having regard to the primary judge’s finding of fact about the tone of voice used by the Tribunal member, I do not consider that a fair minded lay observer informed of the issues would come to the same conclusion as the wife and her migration agent. At that level, the primary judge’s characterisation of the appellants’ claims as “unsubstantiated” is a fair characterisation.

42    It is a difficulty with the way the appellants’ representative has presented the appellants’ case that he did not, as he admitted in oral argument in this Court, take the primary judge to specific elements of the transcript, but rather relied on the affidavits of the wife and Mr Huang and paragraphs [99]-[102] of the Tribunal’s reasons. This is true even though he also sought to rely on Mr Kieran McArdle’s affidavit, which did refer to specific parts of the transcript and characterised the Tribunal member’s “tone”. The appellants’ written submissions say that they relied on the “entirety of the circumstances” as suggested by Robertson J in SZRUI v Minister for Immigration [2013] FCAFC 80 at [91]. The extract from the written submissions at [22] above demonstrates the outcome of the approach adopted by the appellants: sweeping characterisations which the primary judge emphatically did not find to be well-founded on his review of the transcript, sound recording and decision record of the Tribunal which do comprise the “entirety of the circumstances”.

43    Although the primary judge was plainly troubled by the sweeping nature of Mr Chris McArdle’s submissions, since the primary judge did not rely on the other cases in which Mr McArdle had represented a party to determine the application for judicial review, I do not consider that anything turns on the fact that those cases and the issue to which the primary judge refers were not raised with the parties for submissions.

44    I accordingly reject this ground.

Conclusion

45    As none of the grounds of appeal have been made out, the appeal is dismissed. The wife and husband should pay the costs of the Minister as agreed, or failing agreement, as assessed.

Associate:

Dated:    19 March 2014