FEDERAL COURT OF AUSTRALIA

SZSMD v Minister for Immigration and Border Protection [2015] FCA 202

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional writ relief from a decision of the Refugee Review Tribunal given on 11 December 2012 that affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa: SZSMD v Minister for Immigration [2014] FCCA 2304.

2    The substantive issue argued before the trial judge and in this Court was whether the Tribunal’s decision record gave rise to an apprehension that, in its consideration of the appellant’s case, it might have been biased.

Background

3    The appellant is a citizen of the People’s Republic of China who arrived originally in Australia on 27 August 2011. She applied for a protection visa on 14 February 2012. The delegate refused to grant the visa on 31 May 2012. Next, the appellant applied to the Tribunal for a review of the delegate’s decision.

4    The appellant was invited by the Tribunal to a hearing pursuant to s 425 of the Migration Act 1958 (Cth). The Tribunal conducted a hearing at which the appellant gave evidence and was asked to make submissions during much of which she was assisted by, or in the presence of, her migration agent. In substance the appellant advanced five principal claims to the Tribunal.

5    First, she claimed that her boyfriend’s property had been compulsorily acquired by Chinese authorities in 2009 and that he had been paid substantively inadequate compensation. She claimed that her boyfriend had been arrested because he had protested about the manner in which his property had been appropriated and the inadequacy of the compensation and that, about three weeks after his arrest, the police informed his mother and the appellant that he had died in custody. The appellant claimed that, when viewing his body, she saw that he was black and blue all over and concluded that he had been subjected to torture at the detention centre. She claimed that the police had not allowed the body to be taken by the family and that neither she nor the family were aware that he suffered from any condition relating to the cause of his death ascribed by the authorities, namely, heart failure. She believed that he had been tortured to death.

6    Secondly, the appellant claimed that the next month she accompanied the deceased’s mother to the local area government to seek to have his death investigated and that, shortly after they had been interviewed, the mother passed away after asking the appellant to promise to do her best to seek justice for the death of her son. In November 2010, the appellant claimed that she had again approached the local area government to ask it to investigate her boyfriend’s death and was interviewed by other police officers who, having heard her account, warned her not to make any trouble with the local government or police. She claimed that she then pursued her quest with the provincial police and anti-corruption bureau and was interviewed by other officials, who promised to investigate it.

7    Thirdly, she claimed that later in December 2010 she was unexpectedly arrested by police from her local area on her way home from work and was accused of framing government officials and the police in order to plan and start anti-government activities. She claimed that she had denied all of those allegations but that she was mistreated, tortured and received inhuman treatment from police and other criminals while in custody and became seriously ill so that, about a month later, she was released from prison but warned not to make any further trouble. As will appear below, she added to that account shortly before the hearing in the Tribunal. She claimed that she hated the police for what they had done to her and wanted them to be punished.

8    Fourthly, she claimed that she next went to Beijing to petition the central government concerning both her boyfriend’s and her own cases, and that from June 2011 she spent most of her time in Beijing seeking to pursue that endeavour, before coming to Australia. She claimed that on the day before she came to Australia, she was staying with friends when her father informed her that the police had been to her family home seeking to arrest her and that, as a consequence, she immediately went to Guangzhou and left China to fly here.

9    Fifthly, she claimed that, since her arrival in Australia, the police had made trouble for her family and that they had told the family that they knew everything she had been doing in Beijing and had threatened to make the family’s life difficult if she continued to make the police unhappy.

10    The appellant was interviewed by the delegate. In the interview, she claimed that she and her boyfriend had not married because her family had expected him to pay them a bride price in the vicinity of 300,000RMB which he could not then afford, and that he had told her that he had wanted to do things properly. For that reason she claimed they had remained in an unmarried relationship. She claimed that, when released from prison, she had gone to the provincial hospital for a week and then went home because of what she said was an inflammation of the lower part of her body and that her symptoms included bleeding. She said that because of her condition other detainees had told the authorities that they had contacted the public security bureau police who had, in turn, contacted her family so that she was picked up from jail by her older sister.

The hearing in the Tribunal

11    The appellant appeared before the Tribunal and gave evidence through a Mandarin interpreter. During the course of the hearing the Tribunal discussed with the appellant her claim that her family had asked for a bride price of 300,000RMB which her boyfriend had been unable to provide. It raised what it said appeared to be an inconsistency with her evidence, namely, that her family was a poor rural family in financial hardship and that, to the Tribunal, it seemed inconsistent that they would be holding out for such a large bride price. In response, the appellant told the Tribunal that it was the custom in the area where she lived to request a price of 300,000RMB.

12    The Tribunal raised with the appellant that the day before the hearing she had provided a statement to it that she had been gang raped during her detention. In support of that claim the appellant provided a brief report by a clinical psychologist dated 9 October 2012. That report noted that the appellant had reported that she had been experiencing sleeping problems since June 2012, attributing, as the causes, the denial of her request for a visa and her anxiety about the result of her application for review. She also reported to the psychologist that she had had some traumatic experiences in China involving police persecution in December 2010, including being arrested and gang raped while she was kept in police custody, and that she was fearful about her safety if she were returned to China. The psychologist reported that the appellant appeared to be unresponsive to psychotherapy, often crying throughout the session or just sitting without taking. The psychologist stated that she expected that the appellant would need some time to develop trust in the therapeutic relationship before she could open up and be ready to process her feelings. Under the heading “Disclaimer”, the psychologist noted that this psychological assessment, was largely based on the appellant’s self-reported information, the psychologist’s observation of her during the consultation, and that, while the psychologist believed the appellant had presented herself genuinely in the sessions, she wanted to emphasise that the letter was merely to prove that the appellant had been receiving psychological services for her current “psychological conditions” as per the appellant’s request. The psychologist stated that she was not in a position to comment on the appellant’s application to the Tribunal.

13    The appellant became distressed during the course of the Tribunal hearing when the issue of her new claim to mistreatment in prison arose, as a result of which the Tribunal suggested that her male migration agent leave the room, which he did, and the interview continued with the female Tribunal member, female interpreter and the appellant. The Tribunal raised with the appellant that it had not been too late to make a new submission, but that this new claim of her having been gang raped meant that there was lack of information about it and invited her to provide any more information if she could. The Tribunal also raised with the appellant that the psychologist’s letter had referred to the fact the claim of gang rape but had not provided any other information about that incident. The Tribunal told the appellant that it was up to her at that stage whether or not she wished to provide further information, but that the information before the Tribunal at that point was very limited.

14    The appellant responded by telling the Tribunal that she had been raped more than 10 times while she was in the detention centre, that those assaults had happened every two to three days and were committed by the same three male police officers. She said that she had first been raped after being asked about framing the police when she had responded that that was not true, that her boyfriend had died and that she had complained about the denial of their human rights. She claimed that her hands and feet had been handcuffed every time that she was questioned, approximately 10 times over 37 days, that the police officers would detain her when they were drunk and would find an excuse to question her. She confirmed to the Tribunal that she was saying the police officers were drunk at work. She told the Tribunal that she had asserted that the officers could not treat her in that manner, to which they responded that she was inside a detention centre, there was no justice there and they could do what they pleased. She claimed that she had also been raped by the use of beer bottles. The Tribunal inquired of her whether she had had any treatment for physical injuries after her release. The appellant said that she said she had had inflammation of her lower body, and been treated with an intravenous drip and ointment. She claimed that she had not had any stitches.

15    The Tribunal asked her why the police would release her after the alleged events. She replied that it was because she was bleeding, had inflammation, a high fever and had passed out on several occasions. She said that when other detainees had found out how serious her condition was, they had told the police who had then come to see her, confirmed that she might die, and so released her. The Tribunal observed that it seemed somewhat risky for the police officers to allow her to be released, and it would be more to their benefit to allow her to die in prison, so that if that were to happen, she could not tell anyone. She replied saying that when her elder sister arrived to take her away, the police warned her not to tell anyone what had happened to her, otherwise she and her family could not leave. She said that she could not walk in a normal way. The Tribunal again raised with her the issue as to the risk for the police officers in letting her go in those circumstances. She responded that it was not a risk for them because she kept appealing and they were not scared because she could not do anything to them.

16    The appellant also made other claims to the Tribunal, that are not presently relevant, about her treatment within the prison. The Tribunal also explored with her issues about financial matters. Towards the end of the hearing, it returned to the issue of the appellant’s treatment in prison. It informed her of country information that had referred to a very limited number of cases of female detainees being sexually assaulted within the detention centre at which she had claimed to have been detained, and that that information was focused on Falun Dafa followers who had refused to follow orders while in detention.

17    The Tribunal acknowledged to the appellant that sexual assault was a very difficult experience and about which it was very difficult to provide evidence. But it also informed her that its role was to consider the evidence that was before it, including from the appellant, country information and any other reputable sources so as to make a finding whether or not the past harm had occurred, whether, if it had, it was for a Convention reason and, if so, what was likely to happen in the foreseeable future, were the appellant returned to China. It asked the appellant if she had anything further that she would like to say in response to that information, to which she replied by requesting not to be sent back to China.

18    Following the hearing, the Tribunal wrote a letter to the appellant, pursuant to the provisions of s 424A of the Act, offering her the opportunity to comment on country information and research by the Tribunal’s staff concerning some of her claims about the compulsory acquisition of her boyfriend’s land. The appellant replied through her migration agent with a statutory declaration by her and additional country and other information, that are not presently relevant.

The Tribunal’s reasons

19    The Tribunal, in its reasons, accepted that there was evidence that demands for payment of a bride price, usually being a gift of money payable by the groom’s family to the bride’s family, did occur in China, although it was prohibited by that country’s law. It noted that bride price was more common in rural, than urban, areas and referred to an article in the Journal of Economic Perspectives published in 2007 on that matter. It then referred to the fact that it had found little information on the amount of the bride price generally paid but noted that an article published in the Hindu Times in April 2012 had reported that some families had spent tens of thousands of RMB to find brides because of an alarming shortage of women. That article also referred to an example of a man in a different province who allegedly had to pay 50,000RMB for a bride. Additionally, the Tribunal referred to an article in the China Money Report website of April 2012 that noted that the bride price in China had gone up, and gave the example of a person claiming that the parents of a prospective wife charged him 100,000RMB, along with some gold jewellery, when the usual amount in his area was 50,000RMB.

20    The Tribunal noted the country information to which it had directed the appellant, concerning mistreatment of women in the prison in which the appellant had been held. The Tribunal then set out its findings and reasons. It commenced by saying that it had a number of concerns about the appellant’s evidence which caused it to find that she was not a credible witness and had not been truthful in relation to her experiences in China, her reasons for leaving China and her fears about returning. It then outlined what it said were its main concerns. The Tribunal did not accept that there was any reliable information to support the appellant’s claim that her boyfriend’s property had been compulsorily acquired and that the limited material that it had been able to obtain did not independently verify that this event had occurred in the way described by the appellant.

21    The Tribunal then found that, according to the appellant, the payment of the bride price of 300,000 RMB was the main obstacle delaying her marriage to her boyfriend. It referred to country information supporting the increased acceptance of de facto relationships in China, either by choice in urban areas or by custom in rural ones. It also noted that country information supported the claim that a bride price was payable in some circumstances, but said:

However, as raised during the hearing, the Tribunal doubts that the [appellant’s] parents would have asked for 300,000 RMB given that they were from a poor farming background and they continued to live in difficult financial circumstances.

22    The Tribunal observed that the appellant had claimed to have been earning between 4,000RMB and 5,000RMB per month, that her rent for a year was 8,000RMB and that she sent money to her family. It referred to the country information that it had noted earlier as to bride prices of between 50,000RMB and 100,000RMB, including some jewellery, and said:

The comparison of these figures serves to demonstrate the high amount that was apparently requested by the [appellant’s] parents, being 300,000RMB ... in considering this point, the Tribunal has turned its mind to the possibility that the [appellant’s] parents set such a high price in the expectation that it could not be paid and, therefore, the marriage would not go ahead. However, the Tribunal has also considered that she was living independently of her parents. Her parents were in financial difficulty and the Tribunal has also found that the [appellant’s] submissions generally lacked credibility, and it has not accepted this to be the case.

23    The Tribunal then found that the appellant had fabricated her claims concerning the compulsory acquisition of her boyfriend’s land. It also did not accept that she had not resided with her boyfriend in the period after his land was compulsorily acquired because he had been unable to pay the bride price asked for by her parents.

24    The Tribunal then set out the appellant’s account of her mistreatment in prison and rejected it. In considering her evidence, it said that it had taken into account sexual assault was an extremely difficult experience and that there was no set way in which a victim could be expected to act or react to it. However, the Tribunal expressed its doubts as to the truthfulness of her claims in relation to her treatment in detention and on release. The Tribunal said:

This is because the [appellant’s] claims seem unrealistic, that is, because it seems unlikely she would be targeted by the same three guards repeatedly, but there was no mention by the [appellant] of other detainees being targeted, that the guards would be drinking at work (and then find an excuse to question and rape her), there was no mention of forced inhuman treatment by other prisoners (as mentioned in her earlier submission), and it seems unlikely that she would be treated with an IV drip and ointment on release. In addition, the [appellant] supplied very limited information about what actually occurred during the sexual assault (which the Tribunal acknowledges may be understandable if it is true, but the Tribunal cannot make a positive decision on lack of evidence). However, it then seemed incongruous that the [appellant] would not discuss the rape with her male agent in the room but submitted that she had complained of her experiences to the authorities in Beijing and that she had also submitted medical records to the authorities.

25    The Tribunal then referred to country information concerning the mistreatment of Falun Dafa practitioners about 10 to 12 years beforehand, in the same prison in which the appellant claimed to have been held and the absence of any country information from China of authorities using sexual assault in a systematic or discriminatory way as a form of punishment against non-Falun Dafa followers.

26    The Tribunal was not satisfied that the boyfriend’s land had been acquired, that he had complained, been detained, tortured and killed and that when the appellant had complained, she had been detained and raped whilst in detention. Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution in the foreseeable future for a Convention reason due to past sexual assaults whilst in detention and or the risk of future sexual assaults whilst in detention. The Tribunal noted the contents of the letter from the psychologist said:

The correspondence also states that [the psychologist’s] assessment is based on client self-reported information and that [the psychologist] is not in a position to comment on the appeal before the tribunal.

27    The Tribunal also found that, considering the appellant’s evidence overall, she lacked credibility. It referred to the period between April 2011, when the appellant had obtained a passport, her obtaining a student visa on 15 August 2011 and her leaving China on 22 August 2011, noting that it did not accept her explanation that she delayed leaving in order to attend appointments with authorities in Beijing, on the strength of a news story that she had seen about a man who successfully petitioned authorities for the return of his land. It also commented unfavourably on other aspects of the appellant’s evidence that are not presently relevant.

28    The Tribunal found that no complementary protection obligations were engaged under s 36(2)(aa) of the Act because it was not satisfied that the events on which the appellant relied for her protection visa had actually occurred, and there was no evidence before it to conclude that she was a person of interest to the Chinese authorities.

The proceedings below

29    In the Court below, the appellant relied on her further amended application filed on 12 June 2013. There, as here, she was represented by her solicitor, Mr McArdle. The further amended application below raised five grounds, but, ultimately was confined during the course of argument before his Honour to one ground, being that the Tribunal’s conduct of the proceedings, and its conclusion, was such that a reasonable person, “would apprehend them to be encumbered by bias, and was thus not an effective decision that is protected by Section 474.” The complaints of bias were effectively particularised in the other grounds of review, being that the Tribunal’s assessment of the appellant’s evidence and its approach in questioning her had not been to consider her claims on their merits, but had been formulated with a view to requiring the appellant, in effect, to prove positively and with corroboration that what she was asserting had happened to her both in the prison and in respect of the bride price.

30    His Honour, in a lengthy decision, considered all of the grounds of review individually, and rejected them. He also specifically dealt with the bias allegation, and the way in which it had been argued. In doing so he found, having listened to the tape recording of the Tribunal’s hearing and considered the transcript, that the tone of questioning by the member did not support any allegation of an appearance of bias. His Honour found, after referring to a number of passages in the transcript of the Tribunal hearing, that throughout the hearing there was no basis on which to criticise the way in which the Tribunal member had conducted herself or the hearing. He said that, considering the examples together with the impression he had formed by listening to the recording of the entire hearing, it was “hardly the case that the Tribunal member had a closed mind or approached the matter in some way which declined the applicant a full opportunity to give her evidence in a real and meaningful manner.” His Honour found that the manner in which the Tribunal had conducted the proceedings generally reinforced, rather than detracted from, the proposition that it had approached the review of the delegate’s decision with an open mind, and that the member had gone out of her way to give the appellant an opportunity to address the concerns that it raised with her during the hearing.

31    His Honour then began a lengthy discussion of the argument concerning the alleged apprehension of bias. He observed that the way in which the ground for judicial review was framed was that a fair-minded lay observer who was properly informed as the nature of the proceedings, “would apprehend them to be encumbered by bias”. His Honour said that “[t]his is an extremely serious allegation that must be distinctly made and clearly proven”. His Honour said that an allegation of apprehended bias placed a heavy burden on the appellant to establish the claim, but then observed that apprehended bias, in the context of administrative decision-making, was not attended with the same restrictions that applied to cases of judicial pre-judgment. Relevantly, his Honour said:

To the extent that the Court is being invited to examine the contents of the Decision Record, it is unhelpful to look to the reasons of a decision-maker to confirm an impression of bias because of necessity at the time that those reasons are given, the decision-maker has made [up] their mind. The Court’s attention was drawn to the High Court’s decision in Michael Wilson & Partners Ltd v Nicholls [(2011) 244 CLR 427] at [67]-[68], where Gummow ACJ, Hayne, Crennan and Bell JJ stated:

Apprehended bias not established

67.    As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

…

(footnotes omitted)

32    His Honour then considered the various arguments that had been advanced by Mr McArdle in support of the appellant’s case below. His Honour noted that Mr McArdle had acknowledged that he had been cherry picking examples of alleged bias from the tape recording of the Tribunal’s hearing to support the allegations of failures to take into account other information or overlooking evidence. His Honour noted that an adverse credibility finding, and consequent rejection of an applicant’s claims were matters for the Tribunal. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], where McHugh J said:

a finding on credibility … is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

33    His Honour concluded that the Tribunal’s findings were open to it. He observed that the challenge to some of the substantive findings made by the Tribunal against the appellant raised the issue of whether he was being asked to conduct a merits review. Ultimately, his Honour rejected the challenge to the Tribunal’s decision.

This appeal

34    The notice of appeal in this Court raised three grounds; namely, that his Honour had erred:

    when, despite the application before him, he had found that the Tribunal had not applied an onerous standard of proof by requiring corroboration or other substantiation independent of the sworn evidence of the appellant that she had been sexually assaulted by the prison guards;

    by misapplying principles in authorities concerning the failure to take into account relevant considerations;

    when “he failed to find that inconsistent application of “credibility” would cause a reasonable person to apprehend bias on behalf of the Tribunal.” [sic]

35    Before me the appellant concentrated on challenging the Tribunal’s findings in [71] of its reasons, that I have set out at [22] above, concerning her treatment in jail and its rejection of her accounts of rape. Mr McArdle argued that the Tribunal’s reasons were “absurd” because they required corroboration of the claim of rape and that there was an absence of facts on which it relied to find against the appellant in [71] of its reasons. He submitted:

that this tribunal, by all appearances, lay in wait for the applicant. When they [the appellant and her migration adviser] were out of the room, thought up reasons to find fault with what they were saying, and didn’t put – did not put it to them.

36    He contended that the Tribunal had, in effect, imposed a burden of proof on the appellant and that indicated that the Tribunal’s mind was closed. He argued that the Tribunal had failed to consider the psychologist’s diagnosis of a “psychological condition,” and that viewed collectively its substantial adverse findings had been made on a basis that the Tribunal ought to have, but failed to, put directly to the appellant. He contended that that failure gave rise to an apprehension of bias. He argued that in rejecting the appellant’s account of the 300,000RMB demanded by her parents for a bride price, the Tribunal had not assessed her sworn evidence and had instead preferred country information in an Indian newspaper.

37    Mr McArdle submitted that the appellant’s evidence had not really been assessed and that the Tribunal had been surmising about matters in its reasons concerning the likelihood of prison police drinking on duty and the like in a way that denied the appellant procedural fairness because its adverse conclusions on those claims had not been put directly to her. He asserted that, for example, the Tribunal had to put directly to her that it was implausible that the prison guards had been drinking or had raped her and that it needed to comply with either ss 424A or 424AA of the Act if it were to make findings of the kind it did. In challenging the Tribunal’s findings in [71] he relied on what Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [78], contending that their Honours had held there that if the Tribunal’s adverse findings were to be made, it was required to put factual propositions of that nature directly to the appellant so that she had an opportunity to respond. He claimed that, had that been done, she would have been able to point out the facts of the matter so that “the Tribunal would not have been reduced to ‘finding facts’ based on its own surmising”. He argued that the Tribunal’s findings against the appellant were simply a set of “hypotheticals” that the Tribunal had set and that those did not raise issues about inconsistencies that excused the Tribunal from complying with what he asserted had been held in SZBYR 235 ALR at 616 [18].

38    At one point in his written submissions, Mr McArdle also relied on the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [75] as requiring the Tribunal, in accordance with ss 424A or 424AA, or its other functions under the Act, to alert the appellant to any country information that was contrary to her case. However, Mr McArdle withdrew that submission on the basis that the proceedings with which North J was then concerned dealt with common law principles of procedural fairness on judicial review of a decision and not with the principles applicable to the statutory procedure under which the Tribunal operated.

Consideration

39    The principles of procedural fairness require that persons whose interests may be adversely affected receive a fair hearing by use of an appropriate procedure in the circumstances: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160 [25] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ that what is required by procedural fairness is a fair hearing, not a fair outcome and continued:

As Brennan J said in Attorney-General (NSW) v Quin [(1990)170 CLR 1 at 35-56]:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

40    In Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235 [37], Jagot J and I summarised the test for apprehension of bias in an administrative decision-maker in the following terms:

An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425 at [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14]-[21] per Allsop J, with whom Moore and Tamberlin JJ agreed.

41    I do not consider that the trial judge’s reference to a heavy onus being imposed on a person who made an allegation of apprehended bias went beyond a recognition that, the allegation being of a serious nature if the Court were to find it proved, it should do so having regard to the principles discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. The trial judge correctly set out the principles applicable to determine such an allegation.

42    It is, of course, fundamental that decisions made by administrative decision makers, as much as by judicial officers, are seen to have been arrived at in a fair way. A decision-maker must not approach the determination of a matter with a closed mind or a mind predetermined to a particular result. Nonetheless, as the authorities make clear, preconceived opinions, of themselves, do not constitute bias, and a mind open to persuasion is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 564 [185]-[186] per Hayne J; SZQHH 200 FCR 236-237 [38]-[42].

43    An apprehension of bias arises when there is an objective possibility, as opposed to a probability, that is real and not remote, that the decision-maker might not bring an impartial mind to the resolution of a question that has not been determined. The principle that a decision-maker must not act if affected by an apprehension of bias is directed to the possibility of human frailty, and the application of the rules for apprehension of bias are as diverse as human frailty, as Gleeson CJ, McHugh, Gummow and Hayne JJ warned (in a judicial bias context) in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [7]-[8]. They held that the application of the principle required identification of what might be said to lead the decision maker to decide a matter other than on its legal and factual merits and that it is necessary to articulate a logical connection between what is so identified and the feared deviation from the course of deciding the matter on its merits. The mere assertion that a decision maker had, for example, an “interest” in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of a departure from impartial decision-making has been articulated.

44    The appellant’s argument seeks to look ex post facto at the way in which the Tribunal explained why her evidence did not persuade it or was not found by it to be believable on a number of points. At the time a decision maker articulates reasons for a decision, he or she will have made up his or her mind about the subject matter that requires resolution. Necessarily, at that point, the person will have formed a view and, in a case like the present, will be endeavouring to explain the findings of fact and reasoning process by which he or she came to hold that view. In that context, it must be expected that the view will have all of the appearance of being concluded. That is the more so when a decision maker articulates the reasons for coming to the view, as the Tribunal must under s 430 of the Act.

45    It is also important to bear in mind the approach that the High Court has said that the Tribunal ought follow. In SZBEL 228 CLR 165-166 [47]-[48], the Court held that the Tribunal’s procedure had miscarried because it had not given the applicant a sufficient opportunity to give evidence or make submissions about what turned out to be two of the three determinative issues arising in relation to the review before it. They said:

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

Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369],

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

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

46    As best I can discern from the way in which Mr McArdle presented the appellant’s argument, he appeared to be contending that, in effect, the Tribunal had failed to do more than ask the appellant to expand upon aspects of her account that it ultimately did not accept, and ought to have asked her to explain why those matters should be accepted. The submission seemed to be that the Tribunal was almost bound to accept the appellant’s answers to its questions as establishing the facts. He argued that, in effect, the Tribunal had imposed an onus on the appellant to prove that what she was saying was true and that the trial judge should have so found based on the Tribunal’s reasons for rejecting that evidence. He contended that, based on the Tribunal’s reasons in the passages complained of, concerning the bride price, the prison treatment and rape allegations, with hindsight, it had evinced an apprehension of bias in the way that it had approached its assessment of the appellant’s credibility in respect of those matters and her claims generally.

47    In assessing that submission it is necessary to bear in mind the principles explained in SZBYR 235 ALR at 615-616 [17]-[18] and Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 513-514 [20]-[26] per French CJ, Heydon, Crennan, Kiefel and Bell JJ that I applied in SZSOG v Minister for Immigration and Border Protection [2014] FCA 1053. The relevant passage in SZBYR 235 ALR at 615-616 [17]-[18] explained why the Tribunal’s reasons for not accepting the appellants’ account was that it differed from what they had said in a statutory declaration. There, the appellants had argued the s 424A(1)(a) of the Act had required the Tribunal to write to them and to put to them particulars of the inconsistencies between the statutory declaration and their evidence to the Tribunal which it later found. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 477] that the word “information”:

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

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

48    The Tribunal’s obligation to accord the appellant procedural fairness was, as the Court said in SZBEL 228 CLR at 166 [47], relevantly to at least ask her to expand on those aspects of her account which it considered might be important and to explain why the account should be accepted. Importantly, the Tribunal did not have to say why it wished to ask those questions or to what purpose they were directed. That was because it was not obliged to give a running commentary on its own thought processes lest that might give rise to the very concern which is to be guarded against, namely, an apprehension of bias: SZBEL 228 CLR at 166 [48], SZBYR 235 ALR at 616 [18].

49    In his submissions Mr McArdle did not articulate any logical connection between the Tribunal’s expression of its findings and reasons for them, and why, objectively, a fair minded person might consider that the Tribunal, before arriving at those findings and expressing them in its reasons, might have prejudged the matter.

50    It was the Tribunal’s function as the decision maker to determine whether or not the appellant’s evidence satisfied it, under s 36(2)(a) or (aa) of the Act, that Australia owed her either protection obligations. The Tribunal’s reasoning process complained of explained why it was not satisfied by the appellant’s evidence that her parents had demanded a bride price of 300,000RMB and that she had been mistreated in jail. The Tribunal’s reasons identified that it had not been satisfied by the appellant’s evidence, including the psychologist’s report, based on, among other reasons, a lack of information or gaps in her evidence to support those claims. Hence, the Tribunal referred to the very limited information concerning her rape and mistreatment allegations in what the appellant had told it had occurred. The Tribunal’s observation that, despite having asked the appellant on at least two occasions to expand her account of the alleged rape and mistreatment, she had not been able to do so, was not indicative of a prejudgment or pre-determination of an outcome. While it is understandable and a matter of ordinary human experience that she was distressed by the prospect of talking about those allegations, it was for the Tribunal to assess, weigh and determine how her evidence, and gaps in it, affected the decision it had to make.

51    The Tribunal had introduced its questioning of the appellant on her claim first made to it on the previous day, i.e. just before the hearing, as follows:

I am going to leave it to you what you tell me about the submission that you were gang raped in the prison. I will leave it to you to talk about this or not. But at the moment, I don’t have any evidence apart from you saying you were gang raped in your submissions yesterday, and your psychologist’s letter to me saying that you told her you were gang raped and that is all you told her. This is a late submission. There is nothing wrong with giving a submission at this stage. However the downside is that it is a very limited submission, and as I said, the psychologist’s letter says you have told her you are gang raped; you have basically not given her any other information. Sorry, as I said, I will leave it to you now. You have the opportunity now to tell me anything you like about it. If you don’t want to tell me anything, that is fine, but I do not have information about it apart from what I have said to you. Would you like to make any further submissions on your gang rape, your submission at this stage? (emphasis added)

52    After a short break in which her migration advisor left the hearing, the Tribunal invited the appellant once again to comment on her claim about being gang raped and on what the psychologist’s letter reported. The Tribunal repeated in substance what it had said immediately before about her limited account and said, in respect of what she had told the psychologist, “you gave her no other information”. The appellant responded, perhaps understandably, by saying that she did not have any evidence but she could tell the Tribunal about what had happened. The Tribunal responded:

… if you would like to submit that evidence, that is up to you. At this stage I don’t have anything. Would you like to tell me or not?

53    The appellant said she wanted to tell the Tribunal about being gang raped and proceeded to give the expanded account recorded in [71] of the Tribunal’s reasons, that it did not ultimately find persuasive. It asked the appellant, in relation to the circumstances in which she claimed to have been released from detention:

Wouldn’t it be risky to them [the police] if they did release you, that you would tell people what happened to you?

She responded that she had been warned by them not to do so. The Tribunal said that it had heard those submissions but added:

So what I’m saying to you is, it seems to me that it will be very risky for them to allow you to go after this happened, whereas it would be more …. uh, a better outcome for them if you would pass away inside the detention centre if this has happened.

54    The appellant responded that she kept on appealing to the police in the provincial capital city, and this caused the trouble. Later in the interview, as I mentioned earlier, the Tribunal put directly to the appellant the country information concerning the small number of reported sexual assaults in detention at the prison at which she claimed to have been detained and that they were concerned with Falun Dafa or Falun Gong practitioners who refused to submit to the authorities. The appellant responded, perhaps understandably: “But they really did it to me.”

55    The Tribunal member then went to some length to explain the nature of its process to the appellant. The Tribunal member said that she could not accept evidence without having an uncritical or unquestioning mind, and that she had to assess the evidence given to the Tribunal with “questions in my mind”. She invited the appellant to say anything further, to which she replied that she did not wish to be returned to China.

56    I am not satisfied that a fair minded lay person, properly informed of the nature of the proceedings before the Tribunal, might think that the Tribunal member might not bring or have brought a fair and impartial mind to the making of its decision: Ex parte H (2001) 179 ALR 425 at 434-435 [28]-[29]. There is no logical connection between the Tribunal’s expression of its reasoning process for not accepting the appellant’s evidence in the respects complained of, or generally, on the one hand, and on the other hand, Mr McArdle’s submission that, in evaluating those claims and that evidence, it did so with anything other than a mind open to persuasion.

57    The comments complained of in the Tribunal’s reasoning process were simply evidence of doubts, inconsistencies or the absence of evidence within the principle explained in SZBYR 235 ALR 616 at [18] and SZLFX 238 CLR at 513-514 [20]-[26]. The Tribunal expressed a reasoning process about why it found unpersuasive what the appellant had put before it. While other minds may have come to different views on the appellant’s account from those at which the Tribunal arrived, I am unable to see how any jurisdictional error has been demonstrated.

58    I am of opinion that the grounds of appeal really engage in nothing more than merits review. They were not framed or argued in accordance with the ordinary principles of administrative law for judicial review of administrative decision-making. The first ground asserted that the Tribunal had applied an onerous standard of proof by requiring corroboration or other substantiation, independent of the appellant’s sworn evidence that she had been sexually assaulted by the prison guards. The Tribunal did no such thing. It merely expressed itself as having doubts about, and regarded as inconsistent, implausible or lacking in corroboration, what the appellant had said. The Tribunal did not require corroboration as a precondition of finding for the appellant. Rather, it found that the appellant’s account had not satisfied it and noted that that account had not been otherwise corroborated, including by the bare assertions that the appellant had made to the psychologist of the same subject matter.

59    The Tribunal raised with the appellant, during the course of the hearing, that she had not gone into detail or given information about her alleged experiences in a way that a fair-minded person could not have regarded as an inappropriate exploration of the issue. The Tribunal afforded the appellant a reasonable and fair opportunity to expand and comment on those matters, so as to explain why her account ought be accepted. It did not need to do more: SZBEL 228 CLR at 166 [47].

60    The second ground of appeal did not deal with any justiciable issue. It amounted to a complaint that the Tribunal had, in effect, selected pieces of evidence or fastened on the absence of evidence in order to base its factual findings. That was no departure from principles governing the appropriate way in which the Tribunal was bound to take into account relevant considerations. The third ground of appeal asserted that his Honour made an error in failing to find that the Tribunal’s assessment of the appellant’s credibility gave rise to an apprehension of bias. That ground was without substance.

61    As I have said, the three grounds of appeal were put in support of the overall argument that his Honour erred in failing to find an apprehension of bias, and not as independent grounds of judicial review. The appeal should be limited to the way in which the appellant put her case before the trial judge: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. The three grounds of appeal as expressed fail to articulate any basis for a challenge to the Tribunal’s decision. They amount to merits review. It is not the function of the Court to engage in such merits review; its task is to ensure that the Tribunal applied the procedures required by law in the determination of the appellant’s application for review.

62    I am not satisfied that the trial judge erred in dismissing the application below. He was correct to have done so.

Conclusion

63    For these reasons, I am of opinion that the appeal must be dismissed with costs.

Associate:

Dated:    12 March 2015