FEDERAL COURT OF AUSTRALIA

SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

THE COURT ORDERS THAT:

1.    Leave to amend the Notice of Appeal is refused.

2.    The Notice of Appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1        The Appellant is a citizen of the People’s Republic of China. He arrived in Australia in August 2007 on a student visa.

2        In October 2011 he applied to the Department of Immigration and Citizenship for a protection visa. He claimed to “have actively supported Catholics in the Roman Catholic Underground Church ... in China (PRC)” and to have come to the “particular attention” of the Public Security Bureau. His form of application stated he “must be arrested by the Public Security Bureau … and subjected to imprisonment” if he returned to China. In January 2012 he attended an interview with the delegate of the Minister who considered his application. The delegate rejected the application and provided reasons for his decision in February 2012.

3        An application was then filed with the Refugee Review Tribunal later in February 2012. The now-Appellant, together with three other persons, attended before the Tribunal and gave evidence at a hearing in May 2012. He was then represented by a registered migration agent. The Tribunal affirmed the delegate’s decision and published its reasons for doing so in November 2012.

4        An Application was then filed in the then Federal Magistrates Court in November 2012. That Court has since been renamed as the Federal Circuit Court of Australia. An Amended Application was filed in February 2013. A Second Further Amended Application was filed in August 2013. The Second Further Amended Application relied upon the following four Grounds, namely:

(i)        “jurisdictional error” by reason of the Tribunal “failing to respond the Applicant’s claim” that “the evidence that the church activities [the applicant] attended [in Australia] were related to the URCC…” and “thereby den[ied] him procedural fairness”;

(ii)        “jurisdictional error” by reason of the Tribunal “finding that the applicant’s practice of Christianity in Australia was not genuine [and] was not based upon probative material and logical grounds”;

(iii)        an assertion that the Tribunal “committed an error of law or applied the wrong test under section 91R(3) of the Migration Act 1958 … in deciding that the applicant’s church attendance in Australia was engaged in solely for the purpose of strengthening his claim for protection…”; and

(iv)        an assertion that the “Tribunal erred in applying an onerous standard of proof to the applicant, despite there being no ‘onus of proof’ in inquisitorial proceedings”.

A hearing was conducted in August 2013 and the application was dismissed in September 2013: SZSHV v Minister for Immigration & Anor [2013] FCCA 1474.

5        A Notice of Appeal was filed in this Court in October 2013. It identified three Grounds of Appeal, namely an assertion that the Federal Circuit Court Judge erred:

(i)    in rejecting Ground 3 of the Amended Application;

(ii)    in finding “that the Tribunal had not applied an onerous standard of proof”; and

(iii)    in failing “to find that the Tribunal had found the Appellant not to be a credible witness, and had not accepted his and other evidence, whereby a jurisdictional error was committed”.

Written submissions were filed by the legal representatives of both the now-Appellant and the Respondent Minister. The written submissions filed on behalf of the now-Appellant were replete with submissions as to the Tribunal decision being vitiated by reason of a reasonable apprehension of bias. An application was made at the outset of the hearing to amend the Notice of Appeal to include a fourth Ground of Appeal to encompass the written submissions. The terms of the proposed fourth Ground of Appeal was a contention that the decision of the Federal Circuit Court Judge should be set aside because:

(iv)    “a reasonable person would apprehend the presence of bias in the decision appealed against…”

6        Each of the Grounds of Appeal, it should be noted, were all directed – or so the now-Appellant contended – to an underlying concern as to the manner in which the Tribunal had proceeded. Whether the argument be directed to an argument that the Tribunal had applied “the wrong test”, or had applied an “onerous standard of proof”, or as a challenge to the Tribunal’s conclusions as to the now-Appellant’s lack of credit, all such arguments were said to manifest a reasonable apprehension of bias on the part of the informed bystander as to the impartiality of the Tribunal. There was a reasonable foundation, so the now-Appellant submitted, to believe that the Tribunal was committed to “cherry picking” that evidence which supported the rejection of the claims being made and a failure to genuinely consider the evidence which supported those claims.

7        The now-Appellant was represented before the Tribunal by a registered migration agent. He was represented before the Federal Circuit Court by both a solicitor and counsel. He appeared before this Court represented by his solicitor.

8        The application for leave to amend is refused. The appeal is to be dismissed. It was common ground that in such circumstances any order as to costs was to follow the event.

Section 91R – the wrong test?

9        Section 91R(3) of the Migration Act 1958 (Cth) provides as follows:

For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for     one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention     as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise     than for the purpose of strengthening the person's claim to be a refugee within the     meaning of the Refugees Convention as amended by the Refugees Protocol.

It was to this provision that the third Ground of the Amended Application as advanced before the Court below was directed. That Ground initially was there particularised as an allegation that the Tribunal “failed to understand that it was required to consider all conduct relevant to the applicant’s practice of the Christian faith in Australia, including church attendance from September 2007 to April or May 2008”. Further Particulars were added in the Second Further Amended Application. The argument was that the now-Appellant had genuinely pursued his religious activities in Australia and not for the purpose of strengthening his claims. The Tribunal, so it was said, had wrongly failed to consider that conduct.

10        The need to consider the claims being made and the conduct in support of such claims is a requirement that the Tribunal give “proper, genuine and realistic” consideration to those claims and that conduct: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:

“[W]hat was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...”

In New Zealand a comparable approach is recognised where it is said that a decision-maker must “give genuine, and not merely token or … superficial regard, to mandatory considerations…”: New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552 per Cooke P; Ye v Minister of Immigration [2009] 2 NZLR 596 at 618 per Glazebrook J . A statement by a decision-maker that consideration has been given to particular matters tends to suggest that that process of consideration has in fact been undertaken: Bat Advocacy New South Wales Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. But “mere advertence to a matter required to be taken into consideration is not sufficient”. An appeal from that decision has been dismissed: Bat Avocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, (2011) 180 LGERA 99. The reason it is insufficient to simply advert to such a factor is not because the primary decision-maker may have undervalued it, but because (despite appearances) in truth the decision-maker may not have considered it at all: Commissioner of Taxation v Pham [2013] FCA 579 at [39], (2013) 60 AAR 264 at 275 per Katzmann J.

11        In the present appeal, the first Ground confronts at the outset a not inconsiderable difficulty. The reasons for decision of the Tribunal set forth in considerable detail the claims being made by the now-Appellant and findings of fact in relation to those claims. Any argument that the Tribunal did not “consider all conduct” sets itself against the very fact that all of the conduct relied upon by the now-Appellant is set forth in those reasons and taken into account for the very purpose of making those findings of fact. There is nothing on the face of the reasons for the decision to suggest that that process of consideration was anything other than a “proper, genuine and realistic consideration” of the claims being made.

12        A further difficulty to be confronted by a party who seeks to advance the present argument is that considerable care needs to be exercised to ensure that the argument does not invite “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised”: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ. See also: Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 at [56], (2008) 251 ALR 633 at 650 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). “Considerable caution”, it has similarly been said, needs to be exercised when applying the epithet “proper, genuine and realistic consideration” lest “the Court slide into an impermissible merits review”: SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [32], (2012) 128 ALD 338 at 345 per Griffiths J. See also: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [30], (2010) 243 CLR 164 at 175-176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The epithet nevertheless remains a useful touchstone and has been applied (for example) to reach a conclusion that an administrative policy had been applied at the expense of genuine, proper and realistic consideration being given to other relevant factors when resolving a development application: Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 at [109] to [115] per Emerton J.

13        An argument in the present case that the Tribunal “failed to understand that it was required to consider all conduct” is, perhaps, but an emphatic way to express the argument that the consideration given to that “conduct” was not a genuine realistic consideration.

14        Without more, the submission is but an impermissible attempt to seek merits review. There is nothing on the face of the findings and reasons of the Tribunal to expose any failure to properly “understand” and take into account the claims being made and, in particular, the conduct in attending Church services and the related evidence.

15        Perhaps in recognition of the difficulties to be surmounted, the legal representative for the now-Appellant placed emphasis upon the following exchange with the Tribunal member during the course of the hearing in May 2012:

MS KELLY: So after you came to Australia when did you start participating in any Roman Catholic church activities?

[SZSHV] (INTERPRETER): My parents are both underground Catholics and I followed them to Catholic Church gatherings since I was baptized. That was the time when I was 11 years old, I became a real Catholic.

MS KELLY: I understand that, but that wasn’t my question. My question was when you came to Australia, when did you first participate in Roman Catholic Church Activities?

[SZSHV] (INTERPRETER): I came to Australia in August 2007 and I started attending activities from September 2007, that was in Flemington I attended the mass on Sunday.

MS KELLY: Sorry, I missed the month.

The exchange was understood to be relied upon both in support of the first Ground of Appeal and the fourth Ground of Appeal, assuming leave were granted to amend.

16        Whatever be the particular Ground of Appeal to which the exchange was said to be relevant, the exchange was variously characterised during oral submissions as being in the nature of a “police interview” or an exchange designed “to trip up” the now-Appellant. It was said to be the laying of a “trap” in the path of the now-Appellant. Such submissions are, with respect, misplaced. The exchange does not provide any foundation for a submission either that the Tribunal member was not genuinely considering the claims being made in respect to religious activities after arrival in Australia or for a submission that there was a reasonable apprehension of bias. Either by itself, or taken in the context of the questioning both before and after this exchange, the transcript of the interview exposes nothing other than questions being asked to solicit information from the now-Appellant.

17        The Federal Circuit Court Judge correctly rejected the third Ground of the Application as advanced before that Court.

An onerous standard of proof

18        The second Ground of Appeal in this Court had its counter-part in the fourth Ground as first set forth in the Second Further Amended Application in the Court below.

19        Before the Refugee Review Tribunal the now-Appellant bore no onus of proof. As a general proposition, it nevertheless remained incumbent upon him “to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts”: SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 at [18] per Barker J. As a general proposition, it is subject to a number of qualifications. One such qualification may arise where there is imposed on the Tribunal – albeit in limited circumstances – a duty to itself make inquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ there characterised the functions being discharged by the Tribunal as follows:

[18]    It has been said in this court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act: 83 ALJR 1123 at 1127.

Their Honours continued on to make the following observations as to the asserted “duty to inquire”:

[25]     Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case…; 83 ALJR 1123 at 1129.

Again, as a general proposition, the task of the Tribunal is to respond to the case that a claimant advances: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 337, (2003) 77 ALJR 1088 at 1100 per Kirby J.

20        The contention advanced before the Federal Circuit Court Judge and repeated in this Court was that the Tribunal had “applied an onerous standard of proof…”. Before the Federal Circuit Court Judge, the Counsel for the now-Appellant advanced his submission as follows:

This is an unusual case in that there isn’t some element that can be pointed to of inconsistency in the story, or in the circumstances described, that is put to the applicant that can’t be explained away, as it were. That’s the point, in effect, about the unusualness of the credibility findings in this case. And one way to perceive it is, simply, that the tribunal is not only implicitly but in some places explicitly requiring a standard of proof that is not the standard of proof that applies in merits review inquisitorial fact-finding; [2013] FCCA 1474 at [57].

The Federal Circuit Court Judge was correct to reject the submission.

21        The absence of any asserted inconsistencies and the “unusualness of the credibility findings”, according to this part of the case advanced on behalf of the now-Appellant, was only to be explained by the impermissible imposition upon him of some “onerous standard of proof.”

22        An instance of the Tribunal imposing an “onerous standard of proof” was said to be exposed by the Tribunal’s comments in respect to “facial recognition technology”. A question had arisen before the Tribunal as to whether photographs tendered in evidence were indeed photographs of the now-Appellant. The Tribunal’s reasons relevantly state that it took “account of the applicant’s references to facial recognition technology”. The Tribunal, earlier in its reasons, had also recounted the now-Appellant’s reference to “facial recognition technology”. These comments were made in the context of the following exchange occurring during the hearing before the Tribunal:

MS KELLY: Again I’m sorry, but I have difficulty recognising that person as being you and I understand it was taken some years ago.

[SZSHV] (INTERPRETER): I can only say if there’s a technology to prove that, I will welcome that.

MS KELLY: Face recognition technology.

[SZSHV] (INTERPRETER): I didn’t know the name.

Although the now-Appellant expressly disclaimed any duty being imposed upon the Tribunal in such circumstances to make its own inquiries as to such technology and to thereafter make an assessment as to what the photographs disclosed, it was submitted that the Tribunal should have extended to the now-Appellant an opportunity to himself adduce evidence. But no such opportunity was sought by the now-Appellant. And not every reference to possible sources of additional evidence need impose upon the Tribunal the necessity to proffer an opportunity to a claimant to adduce additional evidence. In some cases, to impose such a requirement upon an administrative decision-maker would occasion endless delay in decision-making. Many claimants, other than the most well-prepared, will attend an interview with materials less comprehensive than either hindsight or questioning may suggest was necessary or desirable. On many occasions an administrative decision-maker will properly invite a claimant to provide such further materials as he may wish to rely upon within a specified period of time. But the now-Appellant’s submission goes dangerously further. It is a submission that a decision-maker fails to afford procedural fairness, or imposes an onus of proof upon a claimant, where the decision-maker does not himself invite or proffer a claimant an unsought opportunity to supplement a particular subject-matter of evidence sought to be relied upon.

23        The present exchange that occurred during the May 2012 hearing does not provide any basis for concluding that the Tribunal committed jurisdictional error. It matters not whether the exchange be considered (for example) in the context of an argument as to the imposition of an erroneous onus of proof, or as an argument as to a reasonable apprehension of bias. The argument is rejected.

24        No particular finding was identified on behalf of the now-Appellant to conclude anything other than that the Tribunal was not “satisfied” that the now-Appellant’s claims fell within s 36 of the Migration Act.

A credible witness

25        The third and final Ground of Appeal is also to be rejected. This Ground (to some extent) overlaps the second Ground of Appeal.

26        No particular finding was identified by the legal representative appearing for the now-Appellant in support of his contention that the Tribunal had erred in not accepting his client as a “credible witness”. Nor was any attempt made to identify in the reasons for decision of the Tribunal any particular passage which may have provided some persuasive or more specific support for a contention that the Tribunal was committed to a course of not accepting any evidence that he may have given upon the basis that he was not to be believed on anything, or, on anything that was relevant to his claim. Although specific passages in the transcript of the hearing before the Tribunal were referred to, each passage taken by itself was not persuasive as to one conclusion being reached rather than another. The submission was more understood to be that the transcript of the hearing together with the findings and reasons of the Tribunal, when construed as a whole, were inexplicable except by reference to either the imposition of an onerous standard of proof or by reference to bias or prejudgment. The adverse credibility findings, on this approach, were but a manifestation of a decision-maker committed to a course of sustaining a pre-determined result.

27        It may be accepted that the Tribunal, when assessing credit, needs to be careful as to the manner in which it proceeds: cf. Kneebone S, “The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?” (1985) 5 A J Admin L 78.

28        A Court conducting judicial review of a decision of the Tribunal should itself also exercise particular care. The task of making those findings has been entrusted by the Legislature to the Tribunal, and not the Federal Circuit Court or to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings “par excellence” entrusted to the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration and Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257 at [27] per Lander J.

29        But credibility findings are susceptible to challenge on appeal in both civil and criminal proceedings. Credibility findings made by an administrative decision-maker are also susceptible to challenge upon an application for judicial review.

30         Credibility findings can undoubtedly be founded upon inconsistencies in evidence. But such findings are not so confined. Adverse findings as to credit may also be founded in part upon an assessment as to a witness’ demeanour. But appellate courts when reviewing findings of fact made by a primary judge “have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses”: Fox v Percy [2003] HCA 22 at [30], (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. There has been a shift in more recent years “to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments”: CSR Ltd v Della Maddalena [2006] HCA 1 at [19], (2006) 80 ALJR 458 at 465 per Kirby J (Gleeson CJ agreeing). “Great care”, it has also been said, “must be exercised in making demeanour findings … where a witness is from a different cultural and ethnic background to that which the judge is familiar”: Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 at [21], (2006) 66 NSWLR 186 at 190 per Ipp JA (Mason P and Tobias JA agreeing). “The assessment of cross-examination on credit through an interpreter is often especially difficult”: Ren v Jiang [2014] NSWCA 1 at [13] per Leeming JA. Adverse findings as to credit may also be founded upon matters which may not appear on a transcript of evidence. A witness who only answers a question after consultation with another may be viewed as a witness lacking a frankness to give his own account of events and to leave it to others to provide their own independent account.

31        In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

[78]    It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

The Tribunal in that case had found the claimant had been “untruthful”, including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant’s account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:

[119]    The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

[120]    The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

[121]    To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims; (2013) 212 FCR 99 at 132.

See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

32        In the present appeal the Tribunal made a number of adverse findings as to credit. But none attract any particular reason to question the findings made or the factual basis upon which each proceeded. In its reasons for decision the Tribunal separately addressed its assessment as to the credibility of the now-Appellant: at [173] to [185]. And, when separately addressing “credibility”, the Tribunal’s reasons disclose that it focussed upon two matters. In very summary form, the Tribunal:

    formed an adverse view as to the now-Appellant’s credibility by reason of the fact that he failed to mention any fear of persecution as a reason for not returning to China when he ran out of money in Australia. The failure to mention any such fear assumed, in the mind of the Tribunal, importance because of the now-Appellant’s claims in respect to the persecution suffered by his father and by himself;

And, when considering the photographs relied upon by the now-Appellant, the Tribunal:

    said that it did not recognise the now-Appellant from the photograph. This assessment by the Tribunal led it to also not be satisfied that other photographs showing a person assisting a priest and taking communion were photographs of the now-Appellant.

Each of these adverse findings as to credit, however, was open to the Tribunal.

33        But these adverse findings were not the only adverse findings that were made. The Tribunal, for example, also went on to find that the now-Appellant’s evidence:

    as to the transfer of monies to his sister was not “credible”;

    as to providing financial support to his brother was not supported by “documentary evidence” and was not to be accepted; and

    as to providing “information and funds to a member of the URCC in China in 2011 and the consequences he claimed flowed from that” were claims “not supported by reliable corroborative evidence…”

These adverse findings unquestionably contributed to the Tribunal further finding that the now-Appellant’s “delay in applying for a protection visa reinforces its finding that it is not satisfied that his claimed fear of persecution is genuine”.

34        Again these findings were also open to the Tribunal.

35        Perhaps more open to question were the following observations of the Tribunal, namely:

190.    The Tribunal gives little weight to the certificate of baptism for the following reasons. Country information available to the Tribunal indicates that fraudulent documents are easy to obtain in China. The Tribunal does not accept that the applicant’s evidence is credible. It therefore does not accept his evidence about being baptised or that the photograph he claims to be of his baptism is of him, or his evidence about his request to his sister and her sending it to him. As the Tribunal said at the hearing, it does not recognise him in the photograph. In making that finding it has taken into account his claim that he is now 23 years old and the Tribunal accepts that has changed since he was 11.

Where there is nothing on the face of a particular document to suggest its lack of authenticity, it may be a questionable course of reasoning to suggest that the particular document is “fraudulent” because “fraudulent documents are easy to obtain…”. Whether this particular finding is open to question, however, does not detract from the other findings which were made and which were open to be made.

36        The third and final Ground of Appeal is, accordingly, also considered to be without merit.

Submissions as to bias

37        Notwithstanding both the fact that:

    the now-Appellant was represented in the Court below and had such assistance when formulating the Grounds there relied upon in the Application as initially filed and thereafter in the Amended Application and the Second Further Amended Application; and

    the Notice of Appeal was filed in this Court on his behalf by his legal representatives

the written submissions filed in this Court placed heavy reliance upon an argument as to there being a reasonable apprehension of bias on the part of the Tribunal.

38        No comparable submissions had been advanced before the Federal Circuit Court Judge.

39        At the outset of the hearing of the appeal, the legal representative for the now-Appellant contended that such submissions were nevertheless already embraced within the existing Grounds of Appeal. That submission, however, was soon abandoned and leave was sought to amend. Even at that stage, the terms of the proposed amendment had not been reduced to writing. A short adjournment was granted and the proposed new Ground then formulated, together with Particulars stating that there were “no new questions of fact to be decided” and that the application “reflects the principle in Suttor v Gundowda HCA (1950), at 438”. The final Particular stated that the grounds upon which a “reasonable person would apprehend bias are submitted in written submission file in these proceedings”.

40        To proceed in such a fashion, and to deny to both the Court and the Respondent Minister any advance notice and certainty as to the Grounds to be advanced for resolution on appeal, is both a failure to comply with the Rules of this Court and a failure to comply with s 37N of the Federal Court of Australia Act 1976 (Cth). The Court nevertheless has power to permit a new argument to be raised on appeal where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. When considering whether leave to raise a new argument should be granted, care should be taken to ensure that this Court does not become a “de facto … Court of original jurisdiction”: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J.

41        The Respondent Minister opposed the granting of leave to amend but accepted that no prejudice, other than a potential prejudice as to costs, would be suffered if leave were to be granted.

42        The application for leave to amend should nevertheless be refused. Other than to repeatedly make reference to the now-Appellant’s current legal representatives being different to those that appeared before the Federal Circuit Court, no real explanation was provided as to why the argument was not previously advanced. And, moreover, upon analysis the further Ground of Appeal is also without substance. No prejudice is thus occasioned to the now-Appellant in refusing him leave to rely upon it.

43        Albeit expressed in different ways, and expressed in different ways under the rubric of one or other of the existing Grounds of Appeal, the argument was essentially that a reasonable person properly informed could form the view that the Tribunal was not open to be persuaded as to the merits of the now-Appellant’s claims, no matter what he said and no matter what materials were relied upon.

44        By way of example, reliance was placed upon the Tribunal relying upon an absence of corroborative material in some instances and yet in other instances rejecting corroboration when it was provided. The Tribunal unquestionably proceeded in such a fashion. The Tribunal for example:

    made adverse findings as to credit with respect to claims that the now-Appellant provided financial support to his brother and, in that context, placed reliance upon the absence of “documentary evidence”;

and yet:

    gave “little weight” to the certificate of baptism.

Other examples may also be found elsewhere in the Tribunal’s reasons.

45        The rejection of “corroborative” material when it was provided and the reliance placed upon the absence of “corroborative” material in other parts of the Tribunal’s reasons, may assume greater prominence in some cases and not in others. In an appropriate case, a reasonable apprehension of bias may perhaps be distilled by an apparent commitment on the part of an administrative decision-maker to rely upon all available reasons to reject a claim, rather than a commitment to consider all available material in a fair, balanced and genuine manner. Whether such a case is best analysed in terms of a reasonable apprehension of bias or as a failure to consider relevant material may itself depend upon the facts presented.

46        In an attempt to presumably bring the facts of the present case within the rubric of bias or prejudgment, reference was also made to the manner in which the Tribunal member conducted the hearing in May 2012. Particular reference was made to the exchange which was sought to be characterised as being in the nature of a “police interview”.

47        In all cases care must always be taken to ensure that “merits review” is not being undertaken under the guise of “judicial review”. Staying on one side of the line is not always an easy task.

48        But the facts of the present case, it is concluded, expose nothing other than the Tribunal genuinely evaluating each of the claims being made and each of the facts and documents being relied upon. The findings of the Tribunal in respect to the baptism certificate may occasion some reason to hesitate. But that finding, together with the other findings of the Tribunal, taken in context, expose nothing other than the Tribunal properly undertaking a factual analysis.

Conclusions

49        The application for leave to amend the Notice of Appeal should be refused.

50        Each of the remaining Grounds of Appeal has not been made out.

51        An argument that a reasonably informed bystander may apprehend bias on the part of the Tribunal is a different argument to (for example) an argument that the Tribunal has imposed upon a party an onus of proof or an inappropriate onus of proof. The application to amend to include a fourth Ground of Appeal was a substantively different way in which the available facts were sought to be analysed. On the facts of the present case, and no matter how the available facts may have been analysed – either under one of the existing Grounds of Appeal or under the proposed further amendment – the appeal raised nothing other than an impermissible attempt to challenge the factual findings of the Tribunal.

52        It was common ground at the hearing, in those circumstances, that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    Leave to amend the Notice of Appeal is refused.

2.    The Notice of Appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    21 March 2014