NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2004-12-22|Before: Allsop J, Moore J, Allsop JJ, Tamberlin J

the application for protection visas and the documentary material 23 It is convenient first to identify the material that the appellants placed before the Department, the delegate and so the Tribunal for the consideration of their respective claims (the husband and wife, being the first and second appellants, having their own separate claims). 24 Each of the appellants submitted a separate application. Each of the husband and wife filled in the part of the form that asked the following questions: How did you leave? Legally Give details of your exit permit Illegally Describe how you left 25 Each ticked the box adjacent to "illegally"; and adjacent thereto there was written in hand in English the words "pay money". 26 Each also, however, answered the following (and next placed on the form) question, "no": Did you have difficulties obtaining a travel document (such as a passport) in your home country? 27 Read together, these answers would indicate that money was paid to leave illegally, but without difficulty. 28 The applications were accompanied by a statement of three pages from the male appellant. The essence of the claims was expressed in the statement as follows: All my family members are considered as underground church believer by Chinese government, Chinese government manages Catholic Sanzhi Aiguo Association, but our Church is controlled by Roman Pontiff, so our church activity is considered illegal by Chinese Government. Chinese Government persecutes the believer who are loyal to the Roman Catholic Church, doesn't allow them hold public activities. All my family members had been persecuted for a long time due to our religion worship. 29 Thereafter, a history of the family's Catholicism was provided referring to 1916, 1928, 1937 and 1945 identifying a monastery, a Catholic Church association and missionary work. The consequences of the Communist party taking power in 1949 were described. Details were provided of the appellant wife's adoptive grandfather's attitude to, and position under, the new regime, including his "underground" missionary work and spending 15 years in prison in the north-west of the country. There was a brief description of the grandfather's activity after release in 1980, the antagonistic attitude of the (named) local government to him and of the implication of the wife's parents with him (they being sent to prison). The statement also described the underground missionary work of each appellant. 30 The applications were accompanied and followed by nine documents, which were all before the Tribunal. It is necessary to appreciate their content. (None was said by the Tribunal to be a forgery or contrived.) Given the way the Tribunal dealt with them, it is convenient at this point to identify what the Tribunal said about each, and my comments thereon. It appears tolerably clear that the Tribunal found, or at least was prepared to assume, that these documents were signed or sent by the people identified in them. No specific complaint was made on appeal about the primary judge's findings of fact about the documentation. To the extent, in the paragraphs below, that I indicate agreement with the primary judge's comments about the documents, I do so in order to indicate my concurrence with his Honour's conclusions as to the Tribunal's treatment of the documents in its reasons, in the light of the absence of complaint about any fact finding by his Honour in that regard.

document 1 31 This was a two paragraph letter from the pastor of Our Lady of China Chapel in Elmshurst New York. It stated the following, (with necessary emendations to comply with s 91X of the Migration Act): This is to certify that Joseph … [the male appellant] and his wife Maria … [the female appellant] and their son John ... are all Catholics baptized at childhood. Joseph and Maria's marriage was through the recommendation of Rev. Fu Xing Lin who was [the female appellant]'s near relative [the adoptive grandfather referred to in the statement]. Rev. Fu was my fellow villager, both of us had lived in Bao Ding county, Hopeh, China and had studied in preparatory seminary together for five years. Then I left Mainland of China for Taiwan and came to U.S.A. seven years ago. Fr. Fu joined the Congregation of Mission (CM) in China and was the pastor of the Church in Tian Jin. Because of his religious belief, he was persecuted and was put into prison by Communist Party of China. Joseph and Maria were also persecuted due to their relationship with Fr. Fu and being loyal to their faith. They were living a devout life at underground church. Since Fr. Fu died few years ago, they have no one to depend on. 32 The Tribunal's treatment of the letter was as follows: The Tribunal is also not satisfied that the documentary evidence tendered by the applicants establishes that the applicants are Catholics. The letter from Our Lady of China Chapel dated 6 August 1999 (DIMA folio 36) is vague. Accordingly, the Tribunal places little weight on this document. 33 Previously in the reasons the Tribunal had described the letter in the following way: A letter from Our Lady of China Chapel, dated 6 August 1999 (DIMA folio 36), in Elmurst New York, was lodged by the applicants. It is signed by Rev. Thomas Sung, Pastor. It states that the applicant, his wife and child are all Catholics baptised at childhood. Rev. Fu was his fellow villager, and both of them lived in Baoding county, Hopeh, and studied for five years in preparatory seminary. Rev Sung went to the United States seven years ago. Ref. Fu joined the Congregation of Mission in the PRC and was pastor of the church in Tian Jin. He was also put in prison. The applicant and his wife were persecuted due to their religion, and Rev Fu died a few years ago. 34 The primary judge in his first judgment described this treatment as follows (referring first to the description of the contents by the Tribunal): That is a reasonable description of the letter's contents, although it fails to note that Father Sung also said that Father Fu was a near relative of the second applicant. It should also be remarked that priests of the Congregation of the Mission, or the Congregation of the Priests of the Mission to give the order its full name, are known as Lazarists in China. Further, the vicariate apostolic in Tientsin (the former name of Tianjin) was entrusted by Rome to the Lazarists. There is nothing "vague" about the statement that all the applicants were baptised. Baptism is the initiatory sacrament of the Catholic Church. It means that the person baptised becomes a member of the Church. The Tribunal's statement that it placed "little weight" on Father Sung's letter does not explain what use it did make of the information it conveyed. 35 No submission was put to this Court that his Honour's comments were erroneous or not open to be made. I would only add that such a cursory dismissal of the letter by the Tribunal on a basis (its "vagueness") which is not borne out by either the contents of the letter or by the Tribunal's earlier description of the contents is perplexing. It amounts to an unreasoned conclusion bereft of expressed supporting thought process and of any rational foundation.

document 2 36 The second document was a handwritten reference entitled "to whom it may concern" written by the Chaplain (Paschal Chang) of the "Chinese Catholic Pastoral Centre" in Haymarket Sydney. It stated that the family (the three appellants were named) came to "mass" at the Asiana Centre in Ashfield every Saturday evening at 6 pm. 37 The Tribunal's treatment of the document was as follows: The undated handwritten letter from the Chinese Catholic Pastoral Centre in Haymarket (Tribunal folio 22, N99/30696) and the three letters from the same Centre dated 20 August 1999 (Tribunal folios 19-21, N99/30696) are similarly vague and do not claim that the applicants are Catholics. Therefore, the Tribunal places little weight on these documents. 38 The Tribunal had earlier correctly identified the contents of the letter. 39 The letter does not state in terms that the appellants are Catholic. It does say that they attend "mass" weekly and it was on the letterhead of the Chinese Catholic Pastoral Centre and signed by the Chaplain. The letter is in no way vague. The treatment gives cause to wonder how the Tribunal could have concluded as it did. The Tribunal's treatment of the letter amounted to assertion without apparent foundation and was contrary to the contents of the letter.

documents 3, 4 and 5 40 Each of the documents was a brief certificate once again signed by Paschal Chang (on this occasion denominated as "Rev Fr Paschal Chan O.F.M. Priest-in-charge) that each appellant was baptised in China in the Tian Jin Diocese. Each certificate was on the letterhead of the "Chinese Catholic Pastoral Centre". 41 The treatment of these documents by the Tribunal is set out at [37] above. Earlier in its reasons the Tribunal had correctly identified the contents of each document. 42 The primary judge's comments in his first judgment about these three documents and document 2 were as follows: Again, there is nothing vague about the statement that the applicants were "baptised". That means that they are members of the Catholic Church. Joseph is, of course, the Christian name of Father Fu. It should also be remembered that the post-nominal initials "O.F.M". used after Father Chang's name in his letters show that he is a member of the Order of Friars Minor also known as Franciscans. Father Chang also referred to the original certificate of the third applicant's baptism signed by Melchior Siu, the Bishop of Tianjin. The Tribunal's statement that it placed "little weight" on Father Chang's letters is baffling. 43 No complaint was made before us about the primary judge's comments in the fourth sentence of the above excerpt of his Honour's reasons. I agree, in particular, with the last sentence of the primary judge's comments. I would only add the words "and extraordinary" to the last sentence. Once again, there was a conclusory assertion by the Tribunal without apparent foundation.

document 6 44 This was a letter "to whom it may concern" signed by "Rev. Joseph Fu Hsing-Chih, SJ" on the letterhead of the "Fu Jen Catholic University Colleges of Law and Management". It stated the following: This is a letter of character reference for my niece, [female appellant]. I am a Catholic priest working at Fu Jen University in Taiwan and have been here for many years. I have visited my niece, her husband, [male appellant], and son, [third appellant], several times. I know them well both as a relative of theirs and as members of the Catholic Church. Another relative that I know well is a Catholic priest in the area in China where this family has lived. I know that [male appellant] is not employed in Australia and well respected for his diligence and hard work. [Female appellant] is also a very dedicated mother and industrious worker. They are honest people who are very interested in working in Australia. If you wish further information you may write to me. I will supply what information I am able to. 45 The Tribunal dealt with the letter as follows: The 15 October 1999 "letter of reference" from Rev. Joseph Fu Hsing-Chih of Taiwan (Tribunal folio 17, N99/30696) is also vague, and states that the applicants are members of the Catholic Church. Therefore, the Tribunal places little weight on this document. 46 The Tribunal had earlier fairly summarised the letter in the following terms: The ninth document is a 'letter of reference' dated 15 October 1999 from Rev. Joseph Fu Hsing-Chih, S.J. of Fu Jen Catholic University College of Law and Management in Taiwan (Tribunal folio 17, N99/30696). It states that his niece is Fun Yen Hung, the applicant's wife. Rev. Fu is a Catholic priest working at this university, and has been there for many years. He states that he has visited his niece, her husband and son several times, and they are all members of the Catholic church. 47 The primary judge's comments in his first judgment were as follows: That is a fair summary of the letter from a Jesuit priest who is an uncle of the second applicant. I think that the Tribunal's subsequent statement that the letter is "vague" is ridiculous and its employment of the formula "little weight" is totally perplexing. I agree. I repeat my comments in the last two sentences of [35] above about this treatment by the Tribunal. The unreasoned nature of the assertion of little weight is even more puzzling given that the letter does say that the appellants were members of the Catholic Church.

Document 7 48 This was a translation of a letter in Spanish from the Rev Pablo Ding Bao Guo the Vicar of 'San Luis Gonzaga' Parish Church in the Mercedes-Lujan Bishopric in Buenos Aires Argentina. It was sealed and was intended to be a baptism certificate for the three appellants. It included the following: This is to request the baptism certificates of the following persons (who are father, mother and son, respectively): [here appeared the names of the first, second and third appellants] Baptisms were administered at St. Joseph Cathedral in Tian Jin (China Diocese). This is a very Christian family. From the beginning they have faithfully followed the values and precepts of a Roman Catholic Christian life. Their faith has been maintained always firm. They have attended Sunday Mass and religious festivities, and still do. They have likewise complied with the precepts and sacraments instituted by Jesus Christ and administered in accordance with the Teachings of the Church. God has blessed this family with a priest (their Grand Uncle). His name was FU XING LIN. He was detained in prison for 15 years in Communist China. In addition, this family has endured scorn, persecution, and agony for professing the true Faith, our Faith, the Roman Catholic Faith - persecution initiated by the Revelation Cult. 49 The Tribunal dealt with the document as follows: The 4 August 1999 letter from the San Luis Ganzaga Parish Church in Argentina (Tribunal folios 14-15, N99/30696) is vague, and only states that the applicant are a very Christian family, and have attended Sunday mass and religious festivities. Therefore, the Tribunal places little weight on this document. 50 The primary judge's comments about the Tribunal's treatment and earlier summary were as follows: The "letter from the San Luis Ganzaga [sic] Parish Church" is a reference to a letter dated 4 August 1999 in the Spanish language from Father Ding first submitted with the visa applications. A translation of this letter was sent to the Tribunal on 22 November 1999. The Tribunal earlier described (at p 8) this document as follows: "The tenth document is an official translation of a letter dated 4 August 1999, signed by Rev. Pablo Ding Bao Guo of the San Luis Gonzaga Parish Church in Argentina. It states that the applicant, his wife and son are a very Christian family. They attended Sunday mass and religious festivities. Their grand-uncle is Fu Xing Lin, who was detained for 15 years. Rev. Ding also states that the applicant's family has endured scorn and persecution." In the light of the Tribunal's subsequent conclusion, that is not a fair summary of that document. Father Ding also states that the applicants were baptised in Tianjin, that they "followed the values and precepts of a Roman Catholic Christian life" and that they have always firmly maintained their faith. I agree. I would add that the treatment of the document by the Tribunal in its conclusions (at [49] above) was misleading and inadequate.

document 8 51 This was a further translated document of Rev. Guo. It was in the following terms: In 1999, I went to China, to the city of Tian Jin, and visited [the male appellant], and spent some time with him in his house. Being in Tian Jin, my superior took me to a neighbourhood called BAODI, and I visited a priest, P. Zhang Juan, who was in jail for 20 years. [The male appellant] accompanied me and we travelled in his car. P Zhang Juan lives with his relatives in BAODI. Also with [the male appellant], we visited Beijing, the capital of China, and also visited a small Catholic centre, FENGTAI. We celebrated mass and prayed, we also visited the seminarians. It is important to note that [the male appellant] was not afraid to accompany me, despite Communism and its influence. P. Zhang Juan's telephone number is [number supplied]. The address of my Congregation is: [address in Taiwan supplied] Tel: [number supplied] My superior's name is LIANG DE SHENG My name is DING BAO GUO This letter was accompanied by the passport of Guo, the relevance of which was dealt with by the primary judge in his comments to which I will come. 52 The Tribunal's treatment of this letter was as follows: The statement from Ding Bao Guo (Tribunal folios 67-68, N99/30696) does not claim that the applicants are Catholics, and therefore the Tribunal places little weight on this document. 53 The primary judge's comments in his first judgment were as follows: A further statement from Father Ding in Spanish was submitted to the Tribunal by the migration agent, Ms Tong, on 17 September 2001. This was accompanied by a translation of Father Ding's new statement and a copy of Father Ding's Argentine passport with a visa endorsed for entry to China in March 1999. The Tribunal earlier said (at p 9) of this new statement: "In this statement Mr Ding states that in 1999 he went to visit a priest, P. Zhang Juan, who was in jail for 20 years. The address of Mr Ding's congregation is in Taiwan." This is a very truncated summary of this material. Father Ding is the priest of the parish of San Luis Gonzaga in the town of Villa Flandria also known as Jauregui in the province of Buenos Aires in Argentina. His passport shows that he was born in China and that he visited China in March 1999. In his new statement he confirmed the first applicant's story. Father Ding explained that he was a member of a religious order known as the Little Brothers of St John the Baptist. (This was an order founded in China to recruit local priests.) In order to confirm his credentials, Father Ding gave contact details for the superior general of his order who was now located in Taiwan. These details were provided, it would seem, because at the original Tribunal hearing on 28 April 2000 there was some difficulty about the first applicant not being able to name the superior general of Father Ding's order. Importantly, it appears from the transcript (pp 19-20) of the hearing on 26 September 2001 that the Tribunal completely overlooked this new statement from Father Ding when it questioned the first applicant. The second statement from Father Ding does not claim that "the applicants are Catholics". That is because it is premised on the earlier statement which makes that claim. The second statement bears witness to the first applicant's courage and devotion to the Catholic cause in assisting a visiting priest to contact members of the "underground" church. The Tribunal's observation is pointless. I agree. I would add that the treatment of the Tribunal is (I regret to say) astonishing in its brevity and in the absence of an expressed reasoned, or rational basis for its rejection as of "little weight". Once again there is an unreasoned conclusion bereft of any expressed supporting thought process and of any apparent rational foundation.

document 9 54 There was a certificate "to whom it may concern" signed by Rev PTL Chang O.F.M. Priest in Charge of St Peter Julian's church, Congregation of the Blessed Sacrament in Haymarket. It stated: This is to certify that [male appellant] and his wife [female appellant] with children have frequently come to St Peter Julian's church to attend mass. Apart from coming here, they also participate in Asiana Centre church services. I have a good impression of this family. Without any reservation, I give them the highest commendation. 55 The Tribunal's treatment of this document was as follows: The 13 October letter from St Peter Julian's Church in Haymarket (Tribunal folio 112, N01/39733) claims that the applicants have "frequently come to St Peter Julian's church to attend mass," but does not claim that they are Catholics. Therefore, the Tribunal places little weight on this document. 56 The primary judge's comments in his first judgment were as follows: The letter dated 13 October 2001 was from Father Chang, who had furnished the earlier letters in 1999. To read this later letter by itself, without regard to the contents of his earlier letter, is absurd. I agree. I repeat my additional comments made at in the last two sentences of [35] above.

document 10 57 The last document was a certificate of papal blessing signed at the Vatican on 18 October 2000. 58 The Tribunal's treatment of this document was as follows: Finally, the colour photocopy of the document from Pope Paul II [sic] does not claim that the applicants are Catholics, and therefore the Tribunal places little weight on this document. 59 The primary's judge's comments in his first judgment were as follows: The other document submitted by Ms Tong on 18 October 2001 from a church source was a certificate of papal blessing upon the applicants signed at the Vatican on 18 October 2000 by Archbishop Oscar Rizzato, the Pope's Almoner. I have no idea why the Tribunal would think it remarkable that such a certificate does not claim that the persons upon whom the blessing is bestowed are Catholics, but at least the Tribunal was right about that. I agree. I repeat my additional comments made in the last two sentences of [35] above. 60 The primary judge then concluded as follows about the treatment of this documentary material: It will be apparent from what I have said that I accept the submission that the Tribunal acted perversely in assessing this documentary material. I also agree with the more general criticism of counsel for the applicants about the illogicality of much of the Tribunal's reasoning. The Tribunal's findings are not, in my view, defensible on the evidence and material before it. I agree. 61 It is necessary to turn to the hearing, its conduct and the Tribunal's rejection of the appellants' claims. Before doing so, it should be noted that the treatment of the documentary material was not expressed by the Tribunal as dependent on the credit of the appellants. The documents were not found to be contrived or fake consequent on disbelief of the oral evidence. If that had been the position it would have been stated and procedural fairness would have required the appellants to be given an opportunity to deal with such a serious issue. I will return to the Tribunal's approach to the documents after the conduct of the hearing and the balance of the reasons of the Tribunal are dealt with.

further material submitted to the Tribunal 62 Prior to the hearing before this Tribunal each of the first and second appellants submitted a further statement. They both said that their passports had been obtained illegally. They elaborated on their activities in, and in support of, the underground Catholic Church in China. Also, before the hearing before this Tribunal, the appellants' through their adviser submitted a statement consolidating the first appellant's claims. Supporting material in addition to the ten documents referred to was submitted.

the hearing 63 Both the first and second appellants gave evidence at the hearing, the male appellant first, in the absence of his wife. 64 The questioning of the first appellant began badly, with strong questioning about the passport on a wrong factual assumption. The following was put: First of all in your protection visa application that you originally lodged with the department you said that you had no difficulty in obtaining your PRC passport that was issued in May 1999. It would seem to me implausible that the authorities would have issued you a passport and you had no difficulty obtaining it, yet they were interested in you because of your religious activities in May 1999? 65 The first appellant then explained in some detail about paying to get a passport. Once again the misconceived assumption was thrown back at him: [t]hat also contradicts your assertion in your protection visa application that you had no difficulties obtaining that passport if, as you claim today, that you had to have a friend pay a bribe in order to obtain that passport. I suggest to you that that would have been included in the original protection visa application. Could you please explain? 66 The Tribunal then began a series of questions about Christianity. They are set out below in substance. Most of these were answered in a manner that no rational person could complain about. Some answers were said in the reasons to be inadequate. These (perceived inadequate) answers formed a substantial basis for strong and otherwise unreasoned credit findings. No mention was made in the reasons or in the expression of the evaluation of credit of the answers that appeared to be full or correct. Questions and answers on the subject of religion proceeded as follows. 67 The first was a question the terms of which might be thought to be a matter of some theological and ontological debate: "Which religious faith did Jesus originally belong to? [emphasis added] 68 The answer given was "Catholicism". Again, one could anticipate some debate about that answer, given the question was as to "belief" and given the position of Jesus in Christianity as the Son of God. The Tribunal replied: No, [male appellant]. The original religious belief of Jesus Christ was Judaism. Could you please explain to me why you have stated that it was Catholicism when in fact it is Judaism? 69 The first appellant began an explanation which might be seen to have the seeds of a theological answer: It's a long story. After Jesus was born, before people knew they thought, used the sheep as a sacrifice. I think he was born, he use his own body to sacrifice for the people. 70 The Tribunal demanded an explanation as follows: Excuse me, [male appellant]. I don't want a long exposition about the history of Jesus Christ. I asked you a very simple question and that is which religious faith did Jesus originally belong to and you said Catholicism. In reality it's Judaism. I would like you to explain why it is a contradiction. That is all I would like you to do. 71 The first appellant responded: Okay. Jesus is our Lord and we believe in Catholicism. So he is a symbol of our religion. So first of all Jesus and then ….his follower, then it comes down from generation to generation. 72 The first appellant was asked what the Trinity was. He responded: Holy Father, Holy Son and Holy Spirit. 73 He was asked who executed Jesus Christ. He responded "Ponch Pilate", whom he explained was "in charge at that time" and who (he said) asked the people who to execute, Jesus or the villain; the appellant then said, in an apparent reference to the freeing of Barabbas, that "the Jews say let the villain go and execute Jesus". 74 He was asked why Jesus was executed. He said: Because he was spreading the principle of Catholicism. And he was betrayed by Judas, his follower. Judas, his follower. Okay, by kissing him. Then the people in charge arrested Jesus because they insult the humility of Jesus, saying he is the king of the Jews. 75 He was asked what was the chief mission of Jesus Christ. He said: From ancient time to even today Catholicism is love, that one word "love". Under the central theory is that we must save our souls to go to heaven. Love God, love people. Mainly saving the soul. Save the soul say we can go to heaven. 76 He was asked who Moses was. He said: He say, rescues the Israelis to escape from Egypt. So because at the time the Israelis were slaves in Egypt and God arranged him to save his people from Egypt. Then taking the Israelis to a fortunate land. Then God want to show his greatness so he used like a … and opened the Red Sea. So then until then the Israelis went across the Red Sea, the water came back again so the Egyptian army was stopped. God showed his power to protect the Israelis, protect the people who would love him and believe in him. 77 He was asked who John the Baptist was. He said: He was before Jesus Christ. He baptised Jesus. 78 He was then asked, what might be seen to be an ambiguous question: "Do you know when Jesus Christ was born?". There was apparently a pause, in which the Tribunal asked for an answer. The somewhat non-responsive answer was given as follows: Jesus said those people who did not see me but believe in me are blessed. So I didn't get into those details. So I believe in Jesus that is my Lord but I didn't get into details like when he was born, things like that. 79 The Tribunal put to him the following: Mr [male appellant], Christians around the world believe that Jesus Christ was born on 25 December, Can you please tell me why you don't know that? (I leave aside the question of the differences in calendars over time and between groups of Christians.) 80 The first appellant then said something which would indicate that he thought (not unreasonably) that the Tribunal had been asking for the year, not the day and month. The following exchange then took place: The Interpreter: You are asking me which year, not the date? [Tribunal]: No, I asked you when Jesus Christ was born, Mr [male appellant]. That means the date? [Appellant's representative]: Can I interject. With respect, Tribunal, I also understood you meaning the year. [Tribunal]: You can make your submissions at the end, Mr Dobbie. [Appellant's representative]: Yes, I am just noting that for the record. [Tribunal]: I would ask you to wait to make your submissions at the end and that if you wish to interject that you obtain the leave of the Tribunal, thank you. The Interpreter: Everybody knows that but I thought you were asking me which year. I really didn't know. [Tribunal]: Mr [male appellant], at the beginning of the hearing I asked you that if there was something that you didn't understand that you should bring that to my attention. If there is a question that is ambiguous or you don't understand, ask me. Do you understand that? Interpreter: Okay. 81 The questioning then proceeded: "Where was Jesus born?" The following exchange took place: The Interpreter: In a town called Bylong [Tribunal]: Can you tell me why you don't know that Jesus Christ was born in Bethlehem according to the Bible? The Interpreter: When you translate into Chinese it is like Bylong. It is like that, just a similar pronunciation. 82 There followed some questions about the crucifixion. He was asked: "When was Jesus crucified?" During the answer being given he was cut off. The following exchanges took place: [Tribunal]: When was Jesus crucified? The Interpreter: When? [Tribunal]: When was Jesus Christ crucified? The Interpreter: When … charged him…… [Tribunal]: What does Easter Friday represent to Christians? The Interpreter: Easter [Tribunal]: Easter Friday? The Interpreter: He did, Jesus died, he was crucified on Friday and he resurrected after three days. I think that anything to do with Easter. Easter is about Jesus conquering death, conquering evil. He conquered the evil which means that because Jesus Christ sacrificed we will be saved because Jesus took over all the sin that were committed by us. God sees Jesus suffering so he redeemed the, all the sin from all the people. 83 It is plain from the answer that the first appellant knew that Jesus, in Christian belief, rose from the dead after three days (which, given issues of interpreting, could be understood as "on the third day"), by reference to the crucifixion on Friday. Nevertheless the Tribunal asked the following: Tell me what Easter Sunday represents for Christians? 84 The following confused exchange follows (in the context of the first appellant stating that Jesus was crucified on Friday and was resurrected after three days): The Interpreter: Sunday? [Tribunal]: Easter Sunday? The Interpreter: I am not sure about your question. [Tribunal]: What don't you understand? The Interpreter: So for us Sunday is a day for hearing the mass and worship God. [Tribunal]: But Easter Sunday is a very special day for Christians. What does Easter Sunday represent. Mr [male appellant], Please answer my question? The Interpreter: Easter Sunday. I am not sure about your question. What has Sunday got to do with Easter because Sunday for us is the day, Sunday is the day that we worship God. So I do know that on Sundays we don't work, we should commit ourselves to worshipping God. But Easter Sunday I don't think I have heard about Easter Sunday. 85 The Tribunal next asked about the content of the New Testament. The following exchange occurred [Tribunal]: Tell me some of the names of the books of the New Testament in the Bible? The Interpreter: New Testament mainly talks about after Jesus was born that he suffered until his death in order to save the human being. [Tribunal] Mr [male appellant], I didn't ask that question. I asked you name some of the books of the New Testament please? The Interpreter: Okay, so the old Testament there are books like Exodus and so on but the New Testament mainly talks about Jesus' life. The New Testament talks about after Jesus was born and all the miracles he performed and how he teached people. It talks about how he …. How devil pestered him. Then in the end is the book. Revelations. It talks about how things will be at the end of the world. 86 He was asked what happened at a Catholic mass? The following answer was given. So the main significance of the mass is to commemorate Jesus, his suffering to death. The priest that celebrating holy body, for example the bread is just a bread, after the priest bless it it becomes the holy body and holy blood. So when the priest lift up the holy body and holy blood we all repent. So when we partake of the holy body we can't have sin and before partaking we have to have an empty stomach for one hour. After partaking the holy body which blesses the soul. Human body itself cannot resist evil. We have to rely on holy body which blesses soul, we able to resist the evil. 87 He was asked to recite the ten commandments and in substance complied. 88 He was asked what the Immaculate Conception of Christian belief was. He gave the following answer: That the Holy Mother's conception. That the angel pass a message to Holy Mother that you will be pregnant. She said, I'm not married, how can I be. The angel said what the God wants to happen it will be done. Then she said I will follow God's idea. Then she is pregnant with Jesus. So after Jesus was born she was still a virgin. So everyone else had the original sin but Holy Mother does not have the original sin. 89 He was then asked a question, one would have thought, of some difficulty: Why are there no women priests in the Roman Catholic church? 90 There followed the following exchange in which the first appellant appeared to make the best of dealing with this difficult question: The Interpreter: Only nun. But priests are all men but priest, you can't get married because God said you can't serve money and God. God has said you server money or God. So we now serve God. You can't get married. So the Roman Catholic priests are not married. [Tribunal]: Mr [male appellant], that doesn't answer my questions. I know that all the priests are in the Catholic church are men but I want to know why? The Interpreter: I don't understand the question. It has always been like this. [Tribunal]: All the priests in the Roman Catholic Church are men. There are no women priests. My question is a simple question. Why are the no women priests in the Roman Catholic church? Could you please answer my question? The Interpreter: As far as I know there are women in Catholic church who are virgin, like nuns. Like Theresa. She loves … she is a holy woman, she is a female. There are nuns in Catholic Church, they are virgins for the rest of their life. They become saints. 91 He was then asked for the Catholic Church's position on homosexuality. He answered: "They are against it". He was asked "why". He answered: Because it is against the ethics of Catholicism. It against the number 6 commandment, that is the carry out evil deeds. The Catholic Church love ….. my priest tells me some ……… was burned out because of such things. The sixth commandment, even between husband and wife, that they have restriction. It can not go out of control. So homosexuality is in breach of the sixth commandment. 92 He was then asked for the Catholic Church's position on birth control. The following exchange took place. [Tribunal]: What is the Roman Catholic Church's position on birth control? The Interpreter: You can't do it. Because each child is the gift from God and is God's intention. So it's sacred. [Tribunal]: So even the rhythm procedure is improper according to the Roman Catholics, is that right? The Interpreter: But in our church that, we do, this from these safety periods. But if there is a child then we must keep it because that's God's intention. That is a blessing from God. 93 The questioning on religious matters there ended. It is important to appreciate the degree to which apparently knowledgeable answers were given, to sometimes not straightforward questions. The primary judge described the tone of this questioning as bizarre. In places it was; but I accept that if a Tribunal is to test a person's assertion as to adherence to a religion such a process (however idiosyncratic in a particular case it may appear) is open to the Tribunal if the Tribunal thinks it may be of assistance. It is the way this material was selectively used, to which I will come, that is most troubling. 94 The Tribunal then asked as to the frequency of church attendance in Australia. 95 The Tribunal put to the first appellant that the first statement given (see [28] and [29] above) was so lacking in detail as to be implausible. 96 Another matter of implausibility put to him was that if he and his family had been persecuted he would not have waited until 1999 to flee. The Tribunal said: …It would seem to me implausible that you would have waited until July 1999 before finally leaving the PRC if you had a fear of persecution for such a long time? 97 There was no direct answer to this in two expressions by the first appellant. The Tribunal then said the following which raises the question as to its understanding of the role of the hearing: Mr [appellant's name], I made it very clear at the beginning of the hearing that I had read all the documents in the Tribunal's files and the department's files. The purpose of the hearing is not for you to repeat what you have said previously. The purpose of the hearing is for you to answer my questions and for me to clarify matters which need to be clarified. I have asked you a simple question now two times and giving you a third opportunity and the last opportunity. Can you please tell me why you waited so long after the persecution began in the PRC before you finally left because to me it is implausible that you would wait that long? 98 The first appellant then said that he did not want to flee alone and was waiting for the opportunity to leave with his family. 99 The questions shortly thereafter proceeded to the date of his wife's adopted grandfather's arrest. The following exchange took place: [Tribunal]: Mr [male appellant], in the first statement accompanying your protection visa application it says your adopted grandfather, Mr Fu, was released in 1980. He went back to his home town, he was arrested again for six months. In which year was he arrested on the second occasion? The Interpreter: Also in 1980. After - because after he got home he started mass again. He has got the convictions that he wants to serve God again. [Tribunal]: Excuse me. When I ask you a question, that is a simple question, I prefer that you answer that question. If I need other information I will you ask about other additional information. You also claim in your first statement that the parents of your wife were imprisoned for two months. In which year were they imprisoned? The Interpreter: The parents of my wife? [Tribunal]: Yes? The Interpreter: Sorry, what was that question? [Tribunal]: In which year were they imprisoned? The Interpreter: Same year. 100 The questioning then was directed to the identity of the church he attended in China. Again there are some blunt statements by the Tribunal about the perceived lack of direct answers. 101 Later the Tribunal referred to what it perceived as the late addition of a matter in the supplementary statement filed for the Tribunal hearing. The new matter was the assertion that in 1995 the female appellant was forced to have an abortion of her second child. The Tribunal challenged the male appellant about this: GThere is nothing about the claim in her original protection visa application which was lodged several weeks after your arrival in Australia. You therefore had ample opportunity to present that claim and I also note that the adviser was the same adviser that you had at the time of protection visa application was made and therefore it would seem to me to be a recent invention? 102 The response was: No. It's the truth. Because when I was lodging the original application I thought what I said in the statement should be enough, should meet the criteria. So it was not later imagined, it was the truth. After my wife had been forced abortion, his fingernail was scrape into triangle shape. 103 It should be appreciated that it was only when the second child was born in Australia, after the original application and before the Tribunal hearing, that this issue became relevant to a new sur place claim based on the one child policy. 104 The second appellant was then called in. She was questioned as to the date of her grandfather's re-arrest. She was not questioned, as her husband was, about her religious knowledge. 105 Shortly after the hearing the solicitors acting for the appellants wrote to the Tribunal, complaining about the hearing and requesting that the Tribunal member disqualify himself, in the following terms: The applicants wish to record their concern at the way in which the hearing of the matter was conducted. On numerous occasions the Tribunal forcefully asserted that the evidence of the applicants was implausible, and that aspects of their evidence was recent invention. This was done in such a way as to create the impression that these were not the provisional views of the Member. Further, on occasion, the Member asked questions which were ambiguous and then was highly critical of the applicant for failing to provide the answer the Member believed would have been appropriate. This gave the clear impression that the Member was simply asking the questions to justify a conclusion he had already formed. Again, on occasion, the Member asked question which were open ended (such as "would you like to comment" and "please explain") but was then highly critical of the applicant for answering in more than a single sentence. This gave the impression that the Member had closed his mind to the evidence of the applicant. On occasions the Member would deride answers given by the applicant with inappropriate, emotive, responses such as "I don't care". This gave the impression that Member meant just that. It is the respectful submission of the applicants that the above matters, when taken together, had the effect of overbearing and intimidating the applicants and that it would have created that impression in the fair-minded lay observer. In these circumstances, the applicants request the Member to disqualify himself from determining their application for reasons of the appearance of bias (see Refugee Review Tribunal Ex Parte H (2001) 75 ALJR 982 at [31]). 106 The request was refused. 107 The solicitors then provided four pages of material "in reply to issues raised during the hearing". The letter contains a full and carefully expressed body of material about matters taken up critically by the Tribunal.

the Tribunal decision 108 The Tribunal made a number of findings on credit. 109 The first was that it was "implausible that he [presumably the male appellant] would have been issued with a valid PRC Passport… if the authorities were interested in him." The male appellant, however, said he had not been issued with a valid passport. The implausibility was founded on error, as was the "contradiction" with the first statement. These matters can perhaps be put down to mere error. 110 In dealing with the male appellant's answers on religious topics, the Tribunal restricted its findings, and only referred, to what it perceived to be the unsatisfactory answers about 25 December, about the "original religious faith" of Jesus, about Easter Sunday, about only mentioning Revelations and about no women priests. These answers were described variously as contradictory, evasive and implausible from a Christian. That is hardly a fair evaluation of these answers. No mention was made of the other answers on religion. The Tribunal concluded about not only the male appellant, but also about the female appellant as follows: The Tribunal finds that the fact that the applicant husband was unable to answer basic questions concerning Christian and Catholic beliefs, or provided wrong answers, is inconsistent with an individual who claims to have been a practising Christian and Catholic in these circumstances. Moreover, the Tribunal is not satisfied that an individual such as the applicant who claims to have been such a committed Catholic for so many years would have such a poor knowledge of the Christian religion, especially if he has been attending Catholic services every since July 1999 in the Sydney area. 111 Giving all due leeway to a Tribunal to decide what evidentiary material is relevant to the intellectual process of reasoning out what is necessary to express to encapsulate its reasons for the purposes of s 430 of the Migration Act, it is astonishing that there is no reference to the balance of the answers given to the questioning on religion. The conclusion that the identified answers revealed "such a poor knowledge of the Christian religion" in the light of the terms of those questions, of all the questions and all the answers is startling and difficult to accept as a rational or at least reasoned response to the totality of the questioning and of the material before the Tribunal. 112 These comments are not made in an attempt to draw any conclusions about the legitimacy of the claims. They are, however, directed to what a fair-minded observer would think of a Tribunal who reached these conclusions on one part only of a body of oral responses which otherwise contained an apparently succinct, knowledgeable, and at times apparently subtle, grasp of the Christian religion. 113 The Tribunal then dealt with the ten documents in the manner to which I have referred. 114 On the basis of what appears to be a very questionable, and I think startling, treatment of the oral evidence as to religion and the largely unreasoned and generalised rejection of the utility of the ten documents the Tribunal drew the following conclusion: For these reasons the Tribunal finds that the applicant husband and wife are not Catholics and Christians, as claimed, which lies at the very heart of their claims, and their fear of persecution. 115 By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material. 116 In my view, at least these possibilities (real and not remote) would come to mind to such a fair-minded and informed observer. The second possibility is the apprehension of possible bias. 117 The apprehension of this possibility of apprehended bias would be strengthened by certain other aspects of the conduct of the hearing and the balance of the reasoning process. 118 The hearing was marked by statements of the Tribunal cutting off the first appellant, demanding direct answers (on occasions when such could be seen to be in the course of being given) and reflecting a view in the Tribunal of very limited purpose of the hearing. Taken alone, they are not sufficient to raise an apprehension of bias. Taken in conjunction with the matters referred to earlier they strengthen the apprehension. 119 The view that the first statement of the first appellant was "vague, general and not sufficiently detailed to be believable" is, to my mind, a conclusion difficult to understand and, likewise, a consideration that would strengthen the apprehension. 120 The expressed views that it was "implausible" that the first appellant would wait until 1999 to flee; that his explanation that he waited for an opportunity to take his family was a recent invention in order to create a refugee profile; about the "implausibility" of later statements as lacking detail and as recent inventions fabricated by both male and female appellants; and that it was "implausible" that the appellants would wait four years after the alleged forced abortion before fleeing were all strong assertive findings. Standing alone they may well be viewed as matters within the fact finding role and within jurisdiction. However, here, in circumstances where two central aspects of the performance of the task of the Tribunal are so startling and open to question as to raise an apprehension of the kind to which I have referred, these latter strong, brief and in some respects unreasoned conclusions do nothing to counteract, indeed they tend to strengthen, the apprehension. 121 In my view, the ground of apprehended bias has been made out. The appeal should be allowed.

Alternative Grounds of Disposition of the Appeal 122 A number of other arguments were put forward by the appellants in support of the existence of jurisdictional error in the Tribunal's decision. These are the arguments referred to at [8(b), (c) (d) and (e)] above.

irrelevant considerations 123 It was argued that the questioning of the male appellant about Catholic doctrine and the use of answers was to take into account extraneous material and material required by the Migration Act or under general law not to be taken into account. I disagree. It was an enquiry that was open to the Tribunal. There is nothing in the Migration Act or the general law to make such an enquiry necessarily irrelevant as a matter of law in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.

misconception of function and the asserted lack of a hearing 124 The appellants relied on some of the comments from the Tribunal as to the Tribunal's understanding of the role of the hearing (see [97] above) to found the argument that there had in truth been no satisfaction of s 425 of the Migration Act. 125 I reject this argument. The statement of the Tribunal as to the purpose of the hearing was undoubtedly too narrow. The invitation is to give evidence and present arguments: s 425(1). It is also, of course, for the Tribunal to ask questions and satisfy itself of matters. However, the question is not whether the Tribunal's statement of purpose was satisfactory, but whether s 425 was satisfied. There is no suggestion that the appellants were deprived of the opportunity of giving evidence or putting arguments.

asserted breach of s 424A 126 The second appellant (the wife) argued that she did not have the answers given by her husband to the religious questioning put to her under and within the procedure called for by s 424A of the Migration Act. It was said that this information was part of the reason for the decision with s 424A(1). 127 I reject this argument. The male appellant's answers were not the information which was part of the reason for the decision; rather, it was the view taken by the Tribunal of the unsatisfactory nature of the answers that was part of the reason. The subjective appraisal by, or thought process of, the Tribunal is not information for s 424A: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25]. 128 Also, it was not information specifically about the second appellant: see s 424A(3) and NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264.

the unreasonable finding of the state of satisfaction 129 The argument that the Tribunal committed a jurisdictional error in making its findings in the way it did is not an alternative to the argument on apprehended bias. It may be approached separately from any conclusion on that matter. 130 The argument developed by Mr Godwin was based on what the High Court and members of the High Court have said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20 of 2002 (2003) 198 ALR 59; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 657 [145] per Gummow J; and Corporation of City of Enfield v Development Assistance Commission (2000) 199 CLR 135 [34] ftn 57. 131 The precise extent of the role of factual error and want of logic and irrationality in the reaching of factual conclusions and state of satisfaction is not entirely clear: Applicant S 20 at [8] and [9] per Gleeson CJ and [34]-[37] per McHugh and Gummow JJ. 132 Gleeson CJ expressed the view in Applicant S 20 that where there is a duty to act judicially a power must be exercised according to "law and not humour" (Sharp v Wakefield [1891] AC 173, 179) and that irrationality as described by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 may (my emphasis) involve non-compliance with the duty. Deane J said the following in Bond at p 367: If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C.C.S.U. Case [1985] A.C. at p 410.) When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision. 133 Lord Halsbury LC in Sharp v Wakefield at 179 (cited by Gleeson CJ in Applicant S 20) in discussing a discretion to be exercised judicially said: …that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself. [citations omitted] 134 Mr Johnson who appeared for the respondent referred to a number of Full Court decisions of this Court which have either rejected irrationality or illogicality as a separate ground of jurisdictional error, or dealt with Applicant S 20 in (if I may be permitted to say without intending the slightest disrespect to the High Court or the Full Courts in question) a somewhat cautious manner. See, for example, Minister for Immigration and Multicultural and Indigenous Affairs v W306/1A [2003] FCAFC 208 at [46] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. 135 It is unnecessary to dispose of this case to decide this issue. Nevertheless, there is much to be said for the proposition that the case could be decided on the well-known High Court authorities referred to at [12] above which are reflected in the necessity of this Tribunal to act judicially in the sense referred to by Gleeson CJ in Applicant S 20 and Lord Halsbury LC in Sharp v Wakefield. The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition. 136 Here, the Tribunal did not rely on seeing the witnesses to disbelieve them. That process of assessment of witnesses can at times necessarily include assessment based on impression and, to that extent, be intuitive, at least in part. That did not happen here. A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics. It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a matter of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making. Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided. Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task. 137 Given my views on apprehended bias, it is unnecessary to analyse any further whether these conclusions would lead to the conclusion of jurisdictional error 138 The conclusions of the Tribunal as matters of fact may be correct. I do not know. It is not the task of the Court to decide that. 139 One further matter should be noted. The focus of the Tribunal was on whether the applicants were Roman Catholics and Christians. In this Court, the focus of the argument was on whether the Tribunal's evaluation of that issue was attended by legal error. However, it may well be that this focus of the Tribunal was too narrow and itself betrayed jurisdictional error. The ultimate question was not whether the appellants were Catholics. It was whether they had a well-founded fear of persecution were they to be required to return to China. There was a significant body of material before the Tribunal that the appellants regularly attended church of a particular type and participated in religious ceremonies in Australia and in China. It is by no means obvious that if this were accepted then it would be insufficient to raise an issue about whether the appellants had a well-founded fear of persecution for reasons of religion. Persecution as a result of the manifestation or practice of religious faith might be comprehended by the Convention: see Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 458 at 550. The perception of the appellants by the Chinese authorities as members of the underground Catholic Church may well be the basis of a well-founded fear. This may be seen as quite distinct from the enquiry undertaken by the Tribunal. The argument on appeal was not put in this way. In particular given my views on the appeal on another basis, there is no need to deal with this further possible criticism of the Tribunal's approach. 140 The orders that I would make are that: 1. The appeal be allowed. 2. The orders of the Court dated 12 May 2004 be set aside 3. In lieu thereof the following orders are made: (a) the decision of the Refugee Review Tribunal dated 7 November 2001 and handed down on 4 December 2001 be set aside and the matter be remitted to the said Tribunal to be determined according to law; (b) the respondent pay the applicants' costs. 4. The respondent pay the appellants' costs of the appeal.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Solicitor for the Respondent: Australian Government Solicitor

Procedural introduction 3 This is an appeal from orders made by a Judge of this Court dismissing, with costs, an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 7 November 2001 and handed down on 4 December 2001, which affirmed the decision of the delegate of the respondent Minister not to grant a protection visa. (A previous decision of the (differently constituted) Tribunal had been set aside by consent.) 4 On 9 August 2002, the primary judge dismissed the application on the basis of the protection of the decision by s 474 of the Migration Act 1958 (Cth). His Honour applied s 474 in accordance with the reasons for judgment in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, which were later, in substance, reflected in the views of a majority of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. The decision of the High Court in Plaintiff S157/200 v Commonwealth (2003) 211 CLR 476 was contrary to this approach and led to the setting aside of the primary judge's orders made on 9 August 2002. The matter was remitted to the primary judge for rehearing. On 12 May 2004, his Honour again dismissed the application, concluding that whatever the faults exhibited by the Tribunal's reasons (many of which his Honour had clearly identified in his first judgment), there had been no jurisdictional error displayed, and so s 474 protected the decision. It is against these orders that this appeal is brought. 5 Notwithstanding the erroneous approach of the primary judge in the first judgment in relying on NAAG of 2002, in the light of Plaintiff S 157, it will be necessary to refer to important aspects of the careful and powerfully expressed reasons of the primary judge in dealing with the fact finding and approach of the Tribunal.

Apprehended bias 10 The primary judge rejected the case of apprehended bias in his second judgment at [5] in the following terms: In my earlier reasons for judgment I was critical of the way in which the Tribunal catechized the applicant husband and assessed certain documentary material in reaching its finding that the adult applicants were not Catholics. Counsel for the applicants drew attention to what the Tribunal also said about other subjects, such as the availability of Chinese passports and the timing, content and detail of the applicants' successive statements. He submitted that the Tribunal's reasons on these matters were as flawed as its reasons for rejecting the applicants' claims to be Catholics. Counsel drew on what the Full Court said in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at 609 ([55]) to submit that the Tribunal's conduct gave rise to the perception that its findings had been moulded to support a particular conclusion. I reject that submission. Whatever the strength of the criticism that may be expressed about the Tribunal's reasons, its conclusions were not 'arbitrary and unreasoned' nor 'unsupported by a scintilla of material'. 11 In dealing with the matter in this fashion, the primary judge was, no doubt, responding to a submission based on what the Full Court said in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188; (2003) 76 ALD 597 at [55] where Lee, Hill and Marshall JJ said the following: …To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42].) If that were so the RRT would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction. 12 The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable: see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 189; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385, 403; Foley v Padley (1984) 154 CLR 349, 353, 370; Buck v Bavone (1976) 135 CLR 110, 118-19; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135, 150. "Unreasonableness" in this context may be seen as embodying, at least, what Starke J said in Boucaut Bay Co (In liq) v The Commonwealth (1927) 40 CLR 98, 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28, 57. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360. The perceived absence of findings by the Tribunal so characterised does not, however, exhaust the enquiry as to whether there was apprehended bias, as appears to have been the approach of the primary judge. (I leave to one side at this point whether there was an absence of such findings.) The Full Court in WAEJ was not stating an exhaustive test for apprehended bias of administrative decision-makers. 13 The obligation to accord of procedural fairness involves the notion that administrative decisions, including a decision of a Tribunal of the kind here, will be made without the reasonable apprehension of bias in the decision maker: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 343-44 at [4]; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 91-2. 14 The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32]. It will be necessary to say something more about the content of that test in the context of an administrative decision-maker, such as the Tribunal here. At this point, it is sufficient merely to note that the primary judge did not approach the question of apprehended bias by essaying the somewhat wider task involved in the assessment of the apprehension of the posited fair-minded and informed observer. No doubt this is to be explained by the submissions put to his Honour on WAEJ. 15 The parties were at issue as to the content of the general test of apprehended bias to which I have referred. Mr Godwin, who appeared for the appellants, submitted that it was sufficient that from the available material the fair-minded and informed observer might reasonably apprehend that the Tribunal might not have been impartial. He submitted that the appellants did not have to demonstrate that the posited observer might reasonably apprehend that the Tribunal might have closed its mind to the material before it. Mr Johnson, who appeared for the respondent Minister, on the other hand, submitted that the reasonable apprehension that the Tribunal might have closed its mind to the material before it was an essential element of the notion of apprehended bias in a case such as the present. 16 In order to resolve this debate, it is first necessary to understand how the appellants formulated their criticisms of the Tribunal's handling of the matter. A number of criticisms were levelled at how the Tribunal member conducted himself at the hearing, especially by cutting the male appellant off when he was addressing the Tribunal. Criticisms were also made of how the Tribunal reached a large body of factual findings. It was said that the approach to finding the facts, and the facts as found, demonstrated a lack of impartiality. No particular interest, affection, enmity or prejudice was identified which might have occasioned or contributed to the impugned conduct or approach. Thus formulated, the criticism of lack of impartiality is one which amounts to a complaint of an apprehension of predisposition, tendency or propensity towards a given result: cf Minister v Jia Legeng (2001) 205 CLR 507, 563-64 at [183] per Hayne J. 17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. 20 At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power. 21 The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct "objectified" through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia at 564; Johnson v Johnson (2000) 201 CLR 488, 493. It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality. 22 Within the above legal framework the conduct of the Tribunal must now be assessed.

At a glance

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Before

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Judgment (19 paragraphs)

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Legislation Cited (2)

Cases Cited (29)