SZHBP v Minister for Immigration and Citizenship

Federal Court of Australia|2008-08-21|Before: Crennan JJ, Graham J

The requirements for the grant of a protection visa 1 Under s 45 of the Migration Act 1958 (Cth) ('the Act') a person who is not an Australian citizen who wants a visa must apply for a visa of a particular class. An application for a visa is a valid application if it complies with the requirements of s 46 of the Act. Section 47(1) of the Act requires the Minister to consider valid applications for visas. 2 Section 65 of the Act makes provision for the grant or refusal of visas. It relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 3 In respect of protection visas s 36(2) of the Act relevantly provides: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; … …' 4 The references to the 'Refugees Convention' and to the 'Refugees Protocol' are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (hereafter collectively referred to as 'the Convention'). 5 Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of a refugee in Article 1A of the Convention, in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ('QAAH') at [37]). 6 In Article 1A(2) of the Convention the term 'refugee' applies to any person who: '… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …' 7 By virtue of s 91R(1) of the Act, the requirements of Article 1A(2) in respect of persecution are not met unless the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct. Instances of 'serious harm' for the purposes of s 91R are to be found in s 91R(2).

The role of the Refugee Review Tribunal 8 Under s 411(1)(c) of the Act a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 412 of the Act provides for the making of applications for review of RRT-reviewable decisions by the second respondent, the Refugee Review Tribunal ('the Tribunal'). Section 414(1) of the Act requires the Tribunal to review valid applications made under s 412 for the review of RRT-reviewable decisions. By s 415 of the Act the Tribunal is empowered to exercise all the powers and discretions that were conferred, relevantly, on a delegate of the Minister who has made a decision to refuse to grant a protection visa under s 65(1)(b) of the Act. The powers of the Tribunal included a power to affirm the relevant decision (see s 415(2)(a) of the Act) and a power to set it aside and substitute a new decision (see s 415(2)(d) of the Act). 9 Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal Member conducting the enquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] - [58]; see also QAAH at [40]). 10 The Act does not require that the Tribunal actively assist an applicant in putting his case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]). 11 In relation to matters of procedural fairness at a Tribunal hearing Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ('SZBEL') at [47]-[48]: '47. … 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 maybe 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. 48. … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry, "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.' (footnotes omitted)

Apprehension of bias 12 In relation to an alleged apprehension of bias on the part of a judge, Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 ('Parramatta Design') at [110]-[112]: '110 The appeal [in Parramatta Design] involves the application of well-established principles, which were not in dispute and were both reiterated and explained in Ebner v Official Trustee in Bankruptcy in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge ..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle ... The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." 111 In assessing the logical connection between a matter complained of and any deviation from deciding a case on the merits, (the "second step" in Ebner v Official Trustee in Bankruptcy) it is important to bear in mind the characteristics of modern litigation as recognised by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them." 112 Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.' (Footnotes omitted) 13 In Parramatta Design, Callinan J, after referring to a court procedure whereby statements and documents are prepared, exchanged and filed in advance of a hearing which may and almost always will be read before a trial begins, said in relation to an alleged apprehension of bias at [176]-[177]: '176 I mention these matters because in sum they may well incline a trial judge towards a degree of outspokenness of a kind to which he or she would not be inclined in a conventional trial on largely oral evidence. That this is so does not provide any excuse for the manifestation of apparent bias on the part of a trial judge but it may explain why a judge finds himself or herself speaking more candidly and strongly than he or she might otherwise do, or even have been able to do, in the past or in other jurisdictions. The question nonetheless remains whether the fair-minded lay observer might reasonably have apprehended that the judge might not be bringing an impartial and unprejudiced mind to the resolution of the questions he was required to decide. 177 It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried. In any event, it would have been apparent to any observer from the trial judge's remarks here that his Honour was already well acquainted with the issues, and many of the details of the respective cases of the parties. Indeed, no other conclusion would have been open having regard to the matters which the trial judge raised and the way in which he expressed himself. That he had not formed any final view appears from the number and type of questions that he asked. For example, at one stage he inquired whether one way of looking at the case was a distorted way of doing so. A little later he said that the responses which had been made to him had given him useful background.' (Footnotes omitted) 14 In Parramatta Design Gummow A-CJ and Hayne J separately agreed that the complaint of apprehended bias, which the majority of the Federal Court had found to affect the decision of the primary judge, had not been made out (at [4] and [120]). 15 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 ('Ebner') which was cited with approval by Kirby and Crennan JJ in Parramatta Design, Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]: '7 The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the Tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.' 16 In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 ('Re RRT; Ex parte H') Gleeson CJ, Gaudron and Gummow JJ said, at [27]-[34], in respect of the test for apprehended bias and its application in administrative proceedings where credibility was in issue: '27 The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. 28 Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 29 Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. 30 Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. 31 Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. 32 In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor's application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.' (Footnotes omitted) 17 In Re RRT; Ex parte H the High Court held that prohibition should issue to prevent further action on the decision of the Tribunal. In doing so it opined that a properly informed hypothetical fair-minded lay person might reasonably apprehend that the Tribunal might not bring an impartial mind to the question of satisfaction in respect of the criterion posited by s 36(2) of the Act when taken with the definition of refugee in the Convention. 18 Having formed the view that the prosecutors had made good their claim of apprehended bias, the High Court addressed whether Constitutional writ relief should be granted, in the exercise of the relevant discretion to do so. Notwithstanding a finding that the Tribunal decision was not affected by actual bias, the Court nevertheless decided that relief should be granted. At [33]-[34] their Honours said: '33 Although, in our view, the prosecutors have made good their claim of apprehended bias, we would not grant relief under s 75(v) of the Constitution simply on that account. It is now established that, in the case of a breach of the rules of natural justice, relief under s 75(v) of the Constitution is discretionary. Where, as here, there is a final determination by a superior court, that the decision in question was not affected by actual bias, discretionary considerations necessarily arise. However, in this case, we would grant relief as sought. 34 Where, as in the proceedings before the tribunal, the central issue is credibility, the decision-maker's assessment will often depend upon the demeanour of the witnesses and the manner in which they give their evidence. It cannot be assumed that the prosecutors would have received an unfavourable assessment of their credibility if they had had the opportunity to present their claims without repeated interruptions from the tribunal affirming its lack of belief in their claims. Nor can it be assumed that they could not have given further details of events which might have supported their applications. In particular, it should be noted that the male prosecutor was interrupted when he attempted to give an account of a stoning episode in which, presumably, his home was stoned. These considerations may not, of themselves, constitute a failure to provide the prosecutors with an opportunity to present their claims, but they constitute good reason why relief should not be refused on discretionary grounds.' (Footnotes omitted) 19 In Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 ('Hot Holdings') McHugh J stated the test for apprehended bias in relation to administrative decision-making at [68] by effectively paraphrasing what had been said by Gleeson CJ, Gaudron and Gummow JJ in Re RRT; Ex parte H at [27]-[28] above. His Honour said: '68 The rules of natural justice require that any decision of a Minister that affects a person's rights, interests or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively.' (Footnote omitted) 20 McHugh J continued at [70] by saying: '70 While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. …' 21 I would respectfully adopt as the applicable test for apprehension of bias in respect of the conduct of proceedings before the Tribunal, upon the hearing of an application for judicial review of the ultimate decision of the Tribunal, the test as summarised by McHugh J in Hot Holdings. 22 In addressing the content of the test and its application to the factual situation in the present case, the following matters and issues need to be considered: (a) The Tribunal must be seen to be independent and impartial. (b) The ultimate issue for consideration and in respect of which the Tribunal member had to be satisfied or not satisfied, was whether owing to well-founded fear of being persecuted for reasons of political opinion, the applicant was outside the People's Republic of China and owing to such fear unwilling to avail himself of the protection of the People's Republic of China. (c) The Tribunal member was called upon to address the ultimate issue in circumstances where the applicant had previously given evidence before the Tribunal differently constituted and in circumstances where two earlier decisions had been quashed as a result of applications for judicial review. (d) In order for the Tribunal member to be satisfied that the applicant before him was a non-citizen in Australia, who satisfied the definition of a refugee in Article 1A of the Convention, it was for the applicant to advance whatever evidence and arguments he wished to advance to make out his claim. The applicant had to get his case across the line, there being no responsibility on the Tribunal member to prompt or stimulate the applicant's presentation of his case. (e) The Tribunal member was required to be fair. (f) Notwithstanding the obligation resting upon the applicant to get his case for refugee status across the line, the Tribunal member was required to explore those aspects of the applicant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. (g) It was open to the Tribunal member to vigorously test the evidence presented by the applicant. In so doing, questioning could be more vigorous than might be seen to be appropriate if undertaken by a judge in adversarial court proceedings. (h) Given that the Tribunal hearing had concluded and a decision had been reached, the apprehension of bias test did not require any conclusions to be reached about the factors that actually influenced the decision as made. (i) The applicant had been represented at the hearing before the Tribunal in respect of which the apprehension of bias claim had been made. (j) Were constant challenges made to the truthfulness or plausibility of the applicant's account of the events upon which he relied? (k) Was the applicant's evidence constantly interrupted? If so, might the Tribunal member, by his interruptions, have conveyed a preconceived view that the applicant's account of the events on which his claim to refugee status was based had been fabricated such that there was nothing that the applicant could say or do which might change that view? (l) Viewed objectively, might the testing by the Tribunal member of the applicant's evidence be seen to have become overbearing or intimidatory? (m) If there was a possibility that the Tribunal member might not bring an impartial mind to the questions which he had to decide, was that possibility, objectively assessed, real as opposed to remote? (n) In the circumstances, might a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings and processes of the Tribunal, including the Tribunal member's role, have reasonably apprehended that the Tribunal member might not bring an impartial mind to the questions which he had to decide?

The facts 23 The appellant in the proceedings presently before the Court is a married man who was born in Fujian in China on 27 April 1975. On 3 August 2004 he lodged an Application for a Protection (Class XA) visa in which he claimed that he had arrived in Australia on 19 June 2004, travelling on a Taiwanese passport that had been issued on 28 August 2000. His claim to refugee status was recorded in a statutory declaration made on 2 August 2004 which was lodged with the then Department of Immigration & Multicultural & Indigenous Affairs with his application for a protection visa. He claimed that he was outside the country of his nationality, the People's Republic of China, and unwilling to avail himself of the protection of that country owing to a fear, said to be well-founded, of being persecuted for reasons of political opinion. The relevant political opinion was said to have been expressed by the appellant in respect of the lack of regard or respect and protection for self-employed truck drivers' basic human rights. It was said that the appellant had been involved in organising demonstrations and in endeavouring to form unions, an activity which could lead to criminal charges and imprisonment. 24 The appellant claimed that around the middle of June 2003 he, as a self-employed owner/driver, was given a job to deliver some building materials from Hui'an County to a construction site in Sanming City. The appellant claimed to have a friend, a Mr Li, who had a greater need for money than he did, given that he was supporting his aged mother who was then suffering from a serious illness. In the circumstances he transferred the opportunity to his friend, Mr Li, to perform the work of delivering the relevant building materials from Hui'an County to the construction site in Sanming City. The appellant claimed that his friend, Mr Li, suffered a serious traffic accident whilst doing so which rendered him a paraplegic or quadriplegic. In his statutory declaration the appellant said: 'Unexpectedly, Mr Li's small truck fell into a ravine in the mountainous area while he tried to dodge a big truck which had overtaken him illegally.' 25 The appellant asserted that Mr Li had been accompanied by an assistant driver who jumped free from the truck before the accident. That assistant driver was said to have been able to identify the driver of the big truck, who caused the accident, as being a Mr Jin. The appellant claimed that Mr Jin was an illegal driver who did not hold a driver's licence. However it was said that Mr Jin's father was a senior government official in Sanming City of Fujian Province with a very powerful background who used his wide contacts in the government and particularly in the traffic administrative section of the Public Security Bureau (PSB), to conceal the truth. The appellant contended that the PSB and relevant authorities unfairly decided that the accident was caused simply as a result of Mr Li failing to abide by the traffic laws. The appellant claimed that Mr Jin escaped from legal punishment and Mr Li received not one cent by way of compensation. This circumstance is said to have led the appellant to seek compensation for Mr Li and a fair go for self-employed drivers. 26 The appellant says that he could not remain silent in respect of the apparent injustice. 27 His statutory declaration claimed that: (a) he organised self-employed drivers to strive for respect and protection of their basic human rights; (b) he called upon the authorities to re-investigate Mr Li's accident, to openly punish Mr Jin and his father and to provide reasonable compensation for Mr Li and his family; (c) he organised a group to petition the local government in Sanming City and then the People's Government in Fujian Province; (d) towards the end of September 2003 he organised a sit-in protest in front of a government building housing the People's Government of Fujian Province, in the meantime having distributed copies of the petition to the public; (e) armed policemen in front of the government building threatened the protesters with 'big troubles' and 'serious punishment' if the sit-in protest continued; (f) on 10 October 2003 he organised more than 100 people including self-employed drivers and their relatives to hold a 'big protest'. This protest is said to have taken place 'at a key intersection of the highway from Xiamen City to Fuzhou City'. The appellant says that he distributed propaganda material to the drivers and called on the self-employed drivers to establish their own union to protect their basic human rights; (g) on the evening of 10 October 2003 the Public Security Bureau visited the appellant at his home and took him away to a detention centre of the Fuqing Public Security Bureau for three months; (h) when detained he realised that he had previously been followed by plain clothed policemen; (i) whilst he was detained he was physically tortured and was forced to admit that he had organised an anti-government political demonstration. He says that he originally resisted the demands for a confession whereupon he was beaten; (j) he was not questioned any more but was placed in a 'dark and dirty room together with … criminals' who advised him that he would not be released from detention until he made a confession; (k) the 'criminals' proceeded to torture him from time to time. He says that he feared that he would be persecuted to death if he didn't give up; (l) on 31 December 2003 he was released from detention after signing a confession in which he admitted his so-called anti-government activities; (m) following his release, officers from local police stations and from the local government came to his home, or took him to the Public Security Bureau, from time to time for questioning in relation to his daily activities. He contended that he could not get jobs as he had been branded as a troublemaker with anti-government ideology; (n) he decided to leave China 'in order to escape from such unfair political persecution permanently'. 28 The appellant said that he had to sell his truck and deploy all of his savings to acquire the Taiwanese passport, in another person's name and with different personal details, on which he travelled to Australia. 29 On 13 August 2004 the appellant's application for a protection visa was refused because the Minister's delegate was not satisfied that the relevant criterion, as recorded in s 36(2)(a) of the Act, had been satisfied. 30 On 14 September 2004 the appellant lodged an Application for Review with the Tribunal. His application for review would appear to have been accompanied by a letter dated 10 September 2004 in which the appellant provided a critique of the reasons for decision of the Minister's delegate. 31 The appellant was advised that the Tribunal was unable to make a decision in the appellant's favour on the information contained in the material before it alone. Accordingly, an invitation was extended to the appellant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The invitation nominated Wednesday 1 December 2004 for the proposed hearing. The appellant responded to the hearing invitation indicating that he wished to attend the proposed hearing. 32 It is apparent that the appellant did not attend a hearing before the Tribunal on the appointed day. 33 By a decision signed 2 December 2004 which was handed down on 22 December 2004 the Tribunal affirmed the decision of the Minister's delegate not to grant the appellant a protection visa. 34 The initial decision of the Tribunal was set aside by the Federal Magistrates Court of Australia which remitted the application for review to the Tribunal for reconsideration. Once again a letter was written to the appellant informing him that the Tribunal was unable to make a decision in his favour on the information contained in the material before it alone. He was again invited to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims. The appointed time for the hearing was 1 November 2006. The appellant responded to the hearing invitation indicating that he wanted to attend the proposed hearing. On this occasion the appellant attended the hearing on the appointed day. However, there were difficulties with translation which resulted in an adjournment of the hearing to 20 November 2006 when the appellant gave evidence. 35 On 27 November 2006 the Tribunal, as then constituted, affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. That decision was handed down on 29 November 2006. 36 An extract from the Tribunal hearing of 20 November 2006 was incorporated in a submission of the appellant which became Exhibit 2 before Raphael FM on 16 April 2008 in the application for judicial review brought in respect of a later Tribunal decision which followed a later hearing. The extract from the evidence given on 20 November 2006 indicated that the appellant had given evidence before the second Tribunal member to the effect that he 'picked highway in the midway of the highway from Xiamen City to Fuzhou' as the venue for the demonstration. When asked if he had been obstructing traffic he said 'There was a cross road there. We were in the centre of it. It was not obstructing traffic'. 37 A sketch plan indicating the place at which the 10 October 2003 demonstration was said to have taken place was provided to the third Tribunal member under cover of a facsimile dated 31 October 2007 from the appellant's migration agent, following a hearing before the third Tribunal member on 12 October 2007 and a letter seeking comment on certain information dated 17 October 2007. The sketch plan suggested that the demonstrators had been standing in the vicinity of a 'T' intersection. 38 The second Tribunal member was not favoured with such a sketch plan, nor was the third Tribunal member, until after the third Tribunal hearing. 39 On 27 November 2006 the second Tribunal member affirmed the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. That decision was handed down on 29 November 2006. 40 An application by the appellant to the Federal Magistrates Court for constitutional writ relief was dismissed. However, an appeal from that decision was upheld by Rares J on 15 August 2007. He made an order quashing the decision of the second Tribunal member of 27 November 2006 and granted relief in the nature of mandamus directing the Tribunal to hear and determine the application for review lodged 14 September 2004 according to law (see SZHBP v Minister for Immigration and Citizenship (2007) 97 ALD 84). 41 Thereupon, by letter dated 17 September 2007, the appellant was invited to a further hearing before the Tribunal on 28 September 2007. By its letter the Tribunal informed the appellant that it had considered the material before it but was unable to make a favourable decision on that information alone. 42 The appellant again responded to the hearing invitation by indicating that he wished to attend the proposed hearing. 43 By a letter to the Tribunal dated 20 September 2007 the appellant indicated that he had been 'trying to engage a migration agent as my adviser at the hearing lately but without success'. He sought a deferral of the hearing and this was acceded to, the hearing being rescheduled for 12 October 2007. On that day the appellant attended a hearing before the Tribunal constituted by a third Tribunal member, Mr Giles Short. The hearing lasted for a little over two hours. 44 The appellant was assisted by an interpreter who translated from the Mandarin language into English and vice versa and also by Beatriz Stotz of Playfair Visa and Migration Services who was appointed as the appellant's representative and authorised recipient on 24 September 2007, the relevant appointment having been accepted on 26 September 2007. 45 At the hearing on 12 October 2007 Ms Stotz on behalf of the appellant provided the Tribunal member with a 34 page submission which was accompanied by a three page document downloaded from the Australian Broadcasting Corporation's news service entitled 'Chinese deportee tells of torture'. The submission included a section entitled 'THE APPLICANT'S CLAIMS' which occupied approximately one page, a section entitled 'BACKGROUND COUNTRY INFORMATION' which occupied approximately 29 pages and a section entitled 'THE REFUGEE CONVENTION' which occupied a little more than three pages. 46 The section in the submission which recorded the appellant's claims indicated that his claims were as set out in his protection visa application and as expressed at 'previously differently constituted Tribunal Hearings'. This was followed by a submission in the following terms: 'It is submitted that there are a number of issues that need to be considered by the Tribunal when examining the Applicant's claims: i) Country information/reports (please refer to Country Information section of this submission) that provide evidence that not only political activists but also ordinary individuals who are perceived to have anti-government views/opinions are persecuted by authorities in China. It is submitted that there is independent country information that is consistent with what the applicant claims is the situation in his country of nationality, that this information is well known and that when taken into account supports the applicants claims that his fear of persecution if he is returned to China is well founded. ii) The Applicant claims that he was detained for three months and interrogated and tortured during this time and that he was subjected to on-going monitoring and questioning after his release and cannot (sic) longer have a normal life nor obtain work because he was regarded as a (sic) having anti-government views and as a troublemaker for having organized demonstration and called on self-employed drivers to establish a union. It is submitted that the Tribunal should consider, taken (sic) into account the country information referred to above, whether a person such as the applicant who has come to the attention of and persecuted by authorities for his political opinion and engaging in anti-government activities could always be at risk of being subjected to further persecution in the future if he is returned to China. The Applicant's ability to evade this persecution by giving up his right to freely express his anti-government views in the future if he is returned to China, does not in itself, change the fact that the persecution exists and that his right to freely express his political opinion will be denied. It is the Applicant's past persecution by Chinese authorities for his anti-government views/activities, the risk of further persecution and the lack of freedom to freely and publicly express his political opinion without fear of being persecuted that places the Applicant under the Convention.' 47 The 'BACKGROUND COUNTRY INFORMATION' provided by the appellant to the third Tribunal included an extract from a United States State Department Report of 2006, incorporated in a U.K. Home Office Report "China" published in April 2006, which referred to reforms of the administrative punishment system in China but observed that the reforms seemed to codify rather than abolish the system. The new public order administrative punishment law made provision for administrative review of detention decisions and limited the maximum period for public order detentions to 20 days. The law also created some new offences including 'illegal demonstrations, disturbing social order in the name of religion, invasion of privacy and publication that incites ethnic or national hostility or discrimination'. 48 The UK Home Office Country Information also referred to a 2005 Amnesty International Report on China which covered events in 2004. The report referred to the fact that a number of public order offences were not clearly defined, potentially giving the police free rein to detain individuals in violation of their rights to freedom of expression, assembly and association. The relevant offences referred to included 'spreading rumours', 'provoking quarrels' and 'instigating or plotting illegal gatherings, marches or demonstrations'. It was observed that such provisions had regularly been used in the past to arbitrarily detain numerous individuals for the peaceful exercise of basic human rights, including petitioners and human rights defenders. 49 At the commencement of the hearing before the Tribunal as constituted by Mr Giles Short on 12 October 2007 the Tribunal member said: 'Now [SZHBP] you have been before the Tribunal on a previous occasion [effectively 20 November 2006]. … And the matter is now back before the Tribunal as the result of a decision made by the courts. I'm a member of the Tribunal who will be making a decision on your application and I am not bound in any way by the decision that the previous Tribunal Member made. However, I do have before me the files of the Department of Immigration before that member and I also have the previous Tribunal files relating to your application. And I've also had the opportunity of listening to the tape of the previous hearing that you had with the other member of the Tribunal. … What I propose to do today is to ask you some questions and you will have the opportunity to mention to me anything that you haven't already mentioned to the Department or the Tribunal. I may refer to the information in the course of the Hearing which I consider relevant to your application. I am doing that, not because I have made up my mind about those matters, but in order to be fair to you and to give you an opportunity to respond. …' (Emphasis added) 50 It is not clear whether the third Tribunal member had occasion to read the Statement of Decision and Reasons of the Tribunals as constituted by the previous Tribunal members. However, the statement of the decision and reasons of the second Tribunal member included under the section 'CLAIMS AND EVIDENCE' the following which it may be assumed formed part of the 'previous Tribunal files' or was apparent from the third Tribunal member's replay of the tape of the previous hearing: 'The Tribunal commented that protests against the PRC government have become more common in the last ten years, particularly on issues involving economic grievances. The Tribunal commented that the PRC government appears to permit some of those activities as a means of lessening social tensions. The Tribunal referred to an earlier U.S. Department of State report which reported that 100,000 demonstrations took place in China during 1999: According to a Public Security Ministry report, in 1999 more than 100,000 demonstrations took place, up from 60,000 in 1998. Demonstrations related to economic grievances and official corruption were common, and demonstrations related to family planning continued (U.S. Department of State, 2001, Country Reports on Human Rights Practices for 2000, China, Sec.2 b. 'Freedom of Peaceful Assembly and Association'). A business review of China in 1999 which provided the following overview: The year also saw protests taking place daily around the country, most focusing on issues such as unemployment, housing , financial scandals and corruption. Political analysts said that the government was willing to allow such demonstrations to take place as a means of lessening social tensions. (Asia & Pacific Review World of Information, 1999, 'China; Review 1999', 21 October).' 51 Section 424A of the Act made provision for the Tribunal to give to an applicant, in the way that it considered appropriate in the circumstances, particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision of the Minister's delegate that was under review, to ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review and the consequences of it being relied on in affirming the decision that was under review and inviting the applicant to comment on it. 52 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, a decision of the High Court which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which s 424A was engaged. At [22] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, in their joint judgment, drew attention to the 'limited scope of s 424A' and at [15] and [21] said: '15 … Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. … … 21 … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. …' 53 On 17 October 2007 the Tribunal wrote to the appellant's agent following the Tribunal hearing before the third Tribunal member on 12 October 2007, presumably in the belief that certain information which it had available to it came within s 424A(1)(a) of the Act. The letter invited comment on five separate items. These included: 'First, in the statutory declaration accompanying your original application you said that your friend Mr Li … had been involved in a traffic accident in June 2003 "while he tried to dodge a big truck which had overtaken him illegally". At the hearing on 12 October 2007, however, you said that the accident had involved a small car, not a big truck, and that the car had not been overtaking your friend but had in fact been coming from the opposite direction. You said this in an attempt to explain your claim that the assistant driver on Mr Li's truck had been able to jump off the truck and had thus escaped with only a minor injury although the truck had fallen in a ravine. At the hearing on 12 October 2007 you claimed that the statutory declaration accompanying your original application had not been read back to you in your own language. However you signed the statutory declaration before a Justice of the Peace … and you initialled each page of the statutory declaration … The Tribunal may therefore not accept your claim that you had no knowledge of what was written in the statutory declaration accompanying your original application. This inconsistency between what you said in the statutory declaration … and what you said at the hearing … is relevant to the review because it may lead the Tribunal to conclude that your claims regarding the accident in which your friend Mr Li was involved (and therefore your claims regarding your involvement in protests following that accident) are not true. The inconsistency in your evidence is also relevant to the review because it cast doubt on your credibility, that is, whether you can be believed. Secondly, in the statutory declaration accompanying your application you said that on 10 October 2003 you had organised more than 100 people to hold a big protest at an intersection of the highway from Xiamen City to Fuzhou City. At the hearing before the Tribunal (differently constituted) on 20 November 2006 you said that the demonstration had been at the mid point on the highway between Xiamen and Fuzhou. You said that there had been a crossroads there and that you had been at the centre of it but that you had not been obstructing traffic. At the hearing on 12 October 2007 you said that the demonstration had been in the city of Putian, at an entrance ramp where vehicles from Putian joined the highway. You said that you and the other people involved in the demonstration had stood by the side of the road. The inconsistency in your evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether you and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road is relevant to the review because it casts doubt on whether you are telling the truth about the demonstration. The inconsistency in your evidence is once again also relevant to the review because it casts doubt on your overall credibility. Thirdly, if, as you said at the hearing before the Tribunal (differently constituted) on 20 November 2006, you were not obstructing traffic, it is difficult to accept that you would have been arrested as a result of this demonstration as you claim. Conversely, if you had been regarded as a key organiser of anti-government activity, as you likewise said at the hearing before the Tribunal (differently constituted) on 20 November 2006, it is difficult to accept that you would not have been charged with some offence and imprisoned for longer than the period of two and a half months for which you claim to have been detained. Your representative referred at the hearing on 12 October 2007 to your claim in the statutory declaration accompanying your original application that you had been calling on your fellow self-employed drivers to establish their own union. However, as the Tribunal noted, people who have tried to organise workers to form unions in China have been charged with offences and imprisoned … This information is relevant to the review because it may lead the Tribunal to conclude that you are not telling the truth when you claim that you were arrested following the demonstration on 10 October 2003 and detained for two and a half months and that you were regarded as a key organiser of anti-government activity. Once again this information is also relevant to the review because it casts doubt on your overall credibility. …' 54 Other information was put to the appellant concerning the Taiwanese passport on which it was said that the appellant had travelled when leaving the People's Republic of China and an apparent inconsistency between a disclosure in the appellant's application for a protection visa, where he had indicated that he had no close relatives in Australia, and the fact that the appellant's brother had come to Australia in May 2000. Reference was also made to the fact that the appellant had apparently obtained a passport from the People's Republic of China on 7 August 2002 which passport was produced to the authorities when the appellant was detained in October 2006. 55 The appellant's agent responded to the s 424A letter on 31 October 2007 attaching thereto a copy of a letter which the appellant had sent to his agent on 18 October 2007 and the sketch plan showing the location of the alleged demonstration on 10 October 2003. That plan is, itself, quite confusing. By reference to a photocopy of a road map it may be discerned that the sketch plan was defective in that it failed to make it clear that the demonstration took place at a place where two major roads intersected, one road proceeding in a westerly direction from the Fuzhou-Xiamen highway (which itself ran north-south) and, via an underpass taking traffic across to the other side of the intersection, in an easterly direction from the Fuzhou-Xiamen highway as well. Were the sketch to be believed it could suggest that there was a traffic island upon which demonstrators were standing adjacent to an exit ramp to the south and an underpass to the north with other demonstrators standing on the southern side of the exit ramp on the side of the road. 56 The sketch plan, which was only produced after the conclusion of the hearing before the third Tribunal member, was, without further explanation, far from clear and, arguably, misleading or deceptive. No appropriate explanation was provided by the appellant to the Tribunal Member. What he was given made the location look like a 'T' intersection. 57 In his letter to his migration agent of 18 October 2007 the appellant said in response to the issues raised in the s 424A letter: '1. From the very beginning, I claimed the traffic accident was caused by an illegally overtaking vehicle coming from the opposite direction. My first migration agent showed me the statement in English and asked me to sign on it. She never explained the statement in details hence I really did not realise the discrepancy between my claims and the statement she prepared for me. 2. I claimed the demonstration was held at an intersection along the Fuzhou-Xiamen highway. I explained the issue at my last Tribunal hearing. I never said the demonstration was in the middle of the highway, I claimed that we were standing along the highway holding posters. 3. I did suggest organizing our own union to protect our rights. It was during the 10/10/03 demonstration. However, I was arrested the very same day before I could actually do anything. Therefore, there was no reason for the police to charge me of "organizing illegal union" as the Tribunal mentioned. …' 58 The accompanying letter of the appellant's migration agent, which provided the appellant's response to the s 424A letter, did not proffer the detailed explanation of the intersection which was provided by senior counsel for the appellant on the hearing of the appeal presently before the Court. One can well understand that a Tribunal member would view the sketch plan and the other evidence in relation to the location of the 10 October 2003 demonstration in a manner which was different from that advanced by senior counsel for the appellant.

The Tribunal decision 59 The Statement of Decision and Reasons of the Tribunal constituted by Mr Giles Short was signed by him on 7 November 2007 with a copy being forwarded to the appellant on the same day. By the decision, the Tribunal affirmed the decision of the Minister's delegate of 13 August 2004 not to grant the appellant a Protection (Class XA) visa. The Tribunal member's reasons were recorded on 21 closely typed pages with sections headed 'APPLICATION FOR REVIEW', 'RELEVANT LAW', 'CLAIMS AND EVIDENCE', 'FINDINGS AND REASONS' and 'DECISION'. 60 The 'FINDINGS AND REASONS' of Mr Giles Short were recorded on nine pages. The reasons included towards the end thereof: 'I remain of the view that the applicant did not tell the truth about the fact that he had a brother already in Australia and the fact that he had a People's Republic of China passport issued in August 2002 because he wished to conceal the fact that he had been planning to join his brother in Australia since at least 2002. I conclude from the fact that the applicant did not tell the truth about these matters that there is no truth in the claims made in his application for a protection visa regarding the problems he claims to have had with the authorities in China after his friend's accident in 2003. I consider that the fact the applicant did not tell the truth about these matters in his original application is once again also relevant to his overall credibility. Having regard to the problems with the applicant's evidence outlined above, I do not accept that he is a credible witness. I accept that he is a national of the People's Republic of China having regard to the passport which he has produced but I do not accept that he is telling the truth about the problems he claims to have had with the authorities in China. Specifically I do not accept that the applicant had a friend named Li Chengshan who was involved in an accident, that the applicant was involved in protests following that accident, that on 10 October 2003 he organised a demonstration of more than 100 people at an intersection of the highway from Xiamen City to Fuzhou City, that he was arrested following the demonstration and detained for two and a half months, that he was regarded as a key organiser of anti-government activity or that he was of any interest to the authorities at the time he left China. Since I do not accept the applicant's claims that he was arrested and detained or that he was regarded as a key organiser of anti-government activity, I do not accept that between December 2003 and his departure from China in June 2004 he was continually harassed by the police nor that he was unable to get jobs because the PSB told everyone that he was a troublemaker with an anti-government ideology. … As the Tribunal indicated in its section 424A letter, given that I do not accept the applicant's evidence with regard to the problems he claims to have had with the authorities in China, I do not accept that, as he said at the hearing on 12 October 2007, he will continue to fight against corrupt officials if he returns to China now or in the reasonably foreseeable future. For the reasons given above, I am not satisfied that the applicant has a well-founded fear of being persecuted for reasons of his real or imputed political opinion or any other Convention reason if he returns to China now or in the reasonably foreseeable future. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).' 61 The third Tribunal member made a series of reasoned findings in respect of the appellant's lack of credibility. In relation to the location of the alleged 10 October 2003 demonstration the Tribunal member said amongst other things: '… At the hearing before the second Tribunal on 20 November 2006 he said that the demonstration had been at the midpoint on the highway between Xiamen and Fuzhou. He said that there had been a crossroads there and that they had been at the centre of it but that they had not been obstructing traffic. At the hearing on 12 October 2007 the applicant said that the demonstration had been in the city of Putian, at an entrance ramp where vehicles from Putian joined the highway. He said that he and the other people involved in the demonstration had stood by the side of the road. … I consider that the inconsistency in the applicant's evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether he and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road is relevant to the review because it casts doubt on whether he is telling the truth about the demonstration. … I consider that the inconsistency in the applicant's evidence is once again also relevant to the review because it casts doubt on his overall credibility. In his letter dated 18 October 2007 the applicant said that: "I claimed the demonstration was held at an intersection along the Fuzhou-Xiamen highway. I explained the issue at my last Tribunal hearing. I never said the demonstration was in the middle of the highway, I claimed that we were standing along the highway holding posters." The applicant's representatives submitted a map showing the claimed location of the protest and also a hand-drawn diagram showing where the applicant claimed the protesters were standing, along both sides of an entrance ramp where vehicles from Putian joined the highway. The applicant's representative submitted that the diagram showed that the applicant had not been inconsistent in his evidence or (apparently in the alternative) that the inconsistency in the applicant's evidence was "more related to the general difficulty that may arise in the communication of information between people, in this case the Tribunal and an Applicant via an interpreter, particularly when the communication relates to spatial concepts rather than views or ideas".' 62 The Tribunal member proceeded to find that there was a clear inconsistency between the two accounts given by the appellant as to where the demonstration is said to have taken place. The Tribunal member did not accept that the inconsistency could be attributed to difficulties of communication. He considered that it arose from the appellant giving different accounts at the two hearings. Having regard to the inconsistency the Tribunal member did not accept that the appellant was telling the truth about the demonstration and cast doubt on his overall credibility.

The application for judicial review 63 Following the decision of the third Tribunal member to affirm the Minister's delegate's decision not to grant the appellant a protection visa, the appellant proceeded to, once again, file an application for constitutional writ relief in the Federal Magistrates Court. In his application filed 30 November 2007 he raised grounds in relation to the scope of the review required of the third Tribunal member and alleged denials of procedural fairness. That application was superseded by an Amended Application filed 27 March 2008 a little more than two weeks before the hearing in the Federal Magistrates Court constituted on this occasion by Federal Magistrate Raphael. Only one ground of appeal was included in the Amended Application but that ground had a variety of limbs. The ground relied upon became: '1. Denial of procedural fairness on the basis of the Tribunal's apprehended bias having regard to at least: (a) various adverse statements made by the third Tribunal Member at the hearing on 12 October 2007 which related to central elements of the Applicant's case where such statements were: (i) illogical; (ii) inconsistent with probative material which was before the Tribunal; or (iii) involved a selective use of information which was before the second Tribunal proceeding while ignoring other significant relevant aspects of those earlier proceedings before the second Tribunal, including the fact of that Tribunal's acceptance of key aspects of the Applicant's claims regarding his political activities and persecution in China; (b) making various gratuitous observations about aspects of the Applicant's case during the hearing on 12 October 2007; and (c) attaching excessive weight to so-called inconsistencies in the Applicant's claims and evidence and failing objectively and impartially to assess the Applicant's entirely plausible explanations in relation to such matters.' 64 In relation to (c) it is important to bear in mind what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] (see [15] above): '… if the matter has already been decided, the test [for apprehended bias] is one which requires no conclusion about what factors actually influenced the outcome.' 65 Federal Magistrate Raphael handed down his reasons for judgment in respect of the Amended Application on 29 May 2008. His Honour ordered that the application be dismissed and that the applicant pay the respondent Minister's costs assessed in the sum of $5,000. 66 The appellant was represented in the Federal Magistrates Court by Dr J E Griffiths SC and the respondent Minister by Mr M A Izzo of counsel. On the hearing of the appeal from the judgment of Federal Magistrate Raphael, Dr Griffiths SC again appeared for the appellant, on this occasion with Mr C N Bova of counsel, and Mr Izzo again appeared for the respondent Minister.

The current appeal 67 The appeal was instituted by a Notice of Appeal filed 11 June 2008. Once again the appeal was confined to the issue of whether the appellant had been denied natural justice on the basis that the third Tribunal member, Giles Short, had reached a decision which was not free from any reasonable apprehension of bias. No submission was put suggesting that the Tribunal Member's decision had been affected by actual bias. 68 The appellant's grounds of appeal were summarised by his senior counsel in oral submissions as follows: '… there are three separate grounds that are raised and they can be succinctly stated along the following lines. The first raises a complaint that the federal magistrate applied the incorrect test for apprehended bias. The second is a complaint that the federal magistrate, at times, seems to have treated the particulars of the apprehended bias as though they were individual judicial review grounds in their own right; leading him to then call in aid and apply principles relating to the limits on fact-finding or the limits on reviewing decisions for illogicality as somehow being relevant to him disposing of the apprehended bias case. There were particulars of apprehended bias not being advanced as individual heads of review whether it be illogicality or no evidence or whatever in their own right. That was not the way that they were being presented. … The third ground … says that [i]f the correct test is applied, namely a 'might might' test … as opposed to a 'would' test then [,] applied to these facts [,] the ultimate conclusion was wrong. …' 69 Each party relied upon detailed written submissions that had been provided to the Court prior to the hearing. 70 In relation to the first ground of appeal, I have endeavoured to set out the correct test for apprehension of bias at [12]-[21] above. It is true that the test is concerned with possibility (real and not remote) and not probability. The question is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. The question is not whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process might reasonably apprehend that the decision-maker would not bring an impartial mind to making the decision, nor is the question whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process would reasonably apprehend that the decision-maker might not or would not bring an impartial mind to making the decision. 71 The respondent Minister submitted that the reasons for judgment of the learned Federal Magistrate demonstrated that he was aware of the correct test and sought to apply it even though at times he may have used the words 'would' and 'might' interchangeably. 72 At [12] of his reasons for judgment (see SZHBP v Minister for Immigration & Citizenship [2008] FMCA 699) Federal Magistrate Raphael referred to senior counsel for the appellant's written submissions where he set out the basis upon which he proposed to argue that 'a fair-minded lay person properly informed as to the nature of the proceedings and other relevant matters might reasonably apprehend that the third Tribunal might not have brought an impartial mind to the applicant's review' (emphasis added). 73 At [24] the learned Federal Magistrate referred to the appellant's interpretation of the general test for apprehended bias in the context of administrative proceedings and to the fact that those general statements of principle were accepted as correct by counsel for the respondent Minister. When stating the principles the learned Federal Magistrate repeated the emphasis given to the words 'might reasonably apprehend' and 'might not' in Allsop J's statement of the test in NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14] as provided by Senior Counsel for the appellant. 74 At [25] his Honour cited Re RRT; Ex parte H, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and SZEOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1171. His Honour then said: 'These examples of cases where apprehended bias has been found against the Tribunal indicate that the test is a strict one. It most certainly does not involve the court putting itself in the place of the Tribunal, deciding on the facts that it would have come to a different conclusion than the Tribunal did and then finding that this is what the hypothetical lay observer would have done, and therefore he or she would have thought that the failure to do so would have indicated a propensity or possibility of a mind that was not impartial.' (Emphasis added) 75 His Honour proceeded at [26]: '… I do not see in its findings [those of the Tribunal constituted by Mr Giles Short] a pattern which would suggest to the hypothetical lay observer a closed mind. A hypothetical lay observer may well agree with some of the conclusions reached by the Tribunal, for example, the concerns expressed about the ticket and the method of coming into Australia, or may not be convinced by the applicant's explanation of why he did not reveal the existence of his brother living in Australia in the initial application. One hypothetical lay observer might agree with the Tribunal that the difference in the stories about the motor vehicle accident itself were serious inconsistencies which cast doubt upon the applicant's claims, whereas another might say that the explanation given was plausible enough to negate such concerns. Once this situation occurs, where a court cannot be sure of the reaction of the hypothetical lay observer, it would not be safe to make a finding that the Tribunal was infected by apprehended bias. …'

Consideration and conclusions 76 Whilst the learned Federal Magistrate may have been seized of the correct test as advanced by the appellant and accepted by the respondent Minister, it would appear that when he came to considering its application, he departed from it. 77 He was criticised for describing the test as being a strict one. In my opinion that criticism was unwarranted. The test is certainly expressed in strict terms as his Honour recognised. 78 In relation to the application of the apprehended bias test to the facts, it must be remembered that his Honour was not concerned with an allegation of actual bias. In a case of alleged apprehended bias, possibility is the primary concern not actuality, viewing the matter with the benefit of hindsight (see Ebner at [7] as quoted at [15] above). 79 What his Honour appears to have done at [26], in my view impermissibly, was to have regard to the conclusions actually reached by the third Tribunal member with a view to considering whether a hypothetical lay observer would or might reach the same conclusions. The observation 'I do not see in [the Tribunal's] findings a pattern which would suggest to the hypothetical lay observer a closed mind' could only be relevant to a claim of actual bias and no such claim is advanced here. The apprehended bias test requires no conclusion about what factors actually influenced the outcome. 80 What his Honour should have focussed upon was whether a hypothetical fair-minded lay person, properly informed as to the nature of the application for review and the processes of the Tribunal, might have reasonably apprehended, either as at 17 September 2007 or at some stage thereafter, but before 7 November 2007 that the third Tribunal member might not bring an impartial mind to the questions which he had to decide. 81 Insofar as the appellant sought to place reliance upon findings actually made by the third Tribunal member, he, in my opinion, approached the matter the wrong way given that the issue which he had tendered was one of apprehended bias. 82 In relation to the attack upon the learned Federal Magistrate's approach of isolating the particulars relied upon and treating them as individual grounds for judicial review in their own right, I do not think there is any substance in the appellant's case. This is made abundantly clear by what was said by the learned Federal Magistrate at [24]: '24 I have dealt above individually with the matters raised by the applicant as indicating that the Tribunal might be considered by the hypothetical lay person to have approached this matter with a fixed mind intent upon finding against the applicant, whatever he might have said. The applicant, rightly in my view, relies on the cumulative effect of all these matters and argues that even if there is an explanation for each of them individually, then cumulatively they would have the necessary effect upon the lay observer's mind. …' 83 Turning to the question of whether, applying the correct test for apprehended bias to the facts of this case, a finding of apprehended bias should be made, I am of the opinion that no such finding would be appropriate. 84 If one turns to the transcript of the hearing before the third Tribunal member it seems clear to me that the third Tribunal member explored those aspects of the appellant's account that the Tribunal member considered to be important to the decision, which he was required to make, and which might be open to doubt. In doing so he tested the evidence presented by the appellant. However, he did not test the evidence so vigorously that the testing might be seen to have become overbearing or intimidatory. Furthermore the Tribunal member did not appear to me to have interrupted the appellant in a way which might have conveyed a preconceived view that the appellant's account of the events was such that there was nothing that he could say or do which might change that view. 85 One also finds in the transcript that the Tribunal member probed the identity of the person who posted a $25,000 security to obtain the appellant's release from detention in September 2005 (at page 5.5). The Tribunal member explored the conflicting accounts as to how the appellants claimed friend Mr Li had been run off the road (at pages 7-8). The Tribunal member proceeded to question the appellant about his claimed involvement in a 10 October 2003 demonstration, the location of it and the significance of it (at pages 10-16). The Tribunal member then questioned the appellant about his travel documents (at pages 16-18) and the Tribunal member questioned the reasons for the appellant leaving the People's Republic of China in circumstances where his brother was already living in Australia (at page 18). 86 After questioning the appellant about these matters the Tribunal member invited the appellant's migration agent to raise matters that may not have been covered. He said: 'Miss Stoltz is there anything we have not covered?' 87 The appellant's migration agent proceeded to address the Tribunal member about a number of matters. There then followed a further period of questioning of the appellant. 88 It is true that in the course of the questioning of the appellant the Tribunal member raised challenges to the appellant's claims on which he invited the appellant's comments. These included: Member: 'It seems to me a very odd protest …' … Member: '[SZHBP] I know that's what you say but the problem is that I have difficulty in believing your account. …' … Member: '… if I believe your account this demonstration was the last protest that you made. I think nothing further happened after that.' Applicant: 'Yes that was my last demonstration and I was arrested that night.' Member: '… why would they not have charged you with an offence rather than simply releasing you.' … Member: 'Do you understand that it's a little difficult for me to believe that if as you say the government had regarded you as a key organiser of anti-government activity they would have charged you with some offence.' [The sense of the question was plainly 'they would not have charged you with some offence'] Applicant: '… that was a peaceful demonstration, it didn't disturb anything.' Member: 'Well that's precisely my point. If I accept your account of what you did I can't understand why the government would have been concerned about it at all.' … Member: 'I don't quite understand why the government would want to get you.' Applicant: 'The government wanted to arrest me because I was a key member to organise the demonstrations.' … Member: '… in fact you had a People's Republic of China passport issued in 2002?' Applicant: 'I had the Chinese passport long time ago before the accident I had a passport already.' Member: 'That's not the point is it? You obviously didn't tell the truth about having a passport.' 89 The transcript proceeded to record the making by the appellant's agent of submissions, without any relevant interruption. 90 At [53] above a considerable portion of the Tribunal's letter of 17 October 2007, which was presumably sent in the belief that it was required by s 424A of the Act, was set out. A careful reading of the transcript and the letter discloses no material which, in my opinion, might have led the hypothetical fair-minded lay person, properly informed as to the nature of the application for review and the processes of the Tribunal, to reasonably apprehend that the third Tribunal member might not bring an impartial mind to the questions which he had to decide. 91 None of the conclusions reached by the Tribunal member on issues such as Mr Li's claimed accident, the 10 October 2003 demonstration, the non-charging of the appellant for an offence in relation to the 10 October 2003 demonstration are, as I see it, of particular relevance to the question of apprehended bias on the part of the Tribunal member. The decisions which he ultimately reached were within his jurisdiction to make. None of the findings was expressed in a way which indicated that before 7 November 2007 he might have brought a closed mind to the determination of the issues the subject of those findings. 92 No apprehended bias having been established, the appeal should, in my opinion, be dismissed with costs. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 21 August 2008 Counsel for the Appellant by direct client access: J E Griffiths SC and C N Bova

Counsel for the First Respondent: M A Izzo

Solicitor for the First and Second Respondents: Sparke Helmore

Migration Act 1958(Cth)ss 36(2), 45, 46, 47(1), 65, 91R(1), s

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