SZHGW v Minister for Immigration and Citizenship

TRIBUNAL DECISION 4 The Tribunal did not accept that the appellant would be persecuted for his and/or his family's background. The Tribunal did not accept the appellant was a Falun Gong practitioner in either Australia or China, that he had any association with Falun Gong practitioners in China, or that he had been regarded as a Falun Gong practitioner. The Tribunal found the appellant had invented his claims. The Tribunal did not accept the appellant was a truthful witness and it did not accept he had been harmed in China. The Tribunal found no plausible evidence the appellant has suffered or would suffer persecution for a Convention reason. 5 The Tribunal found the appellant knew very little about Falun Gong. The Tribunal found the appellant's claims of political persecution were inconsistent with his evidence to have lived and worked in China, to have set up his own business, and to have been able to travel for work in China.

THE COURT BELOW 6 In an amended application filed on 11 May 2007 in the Federal Magistrates Court, the appellant claimed that: 1. The Tribunal was biased. 2. The Tribunal had failed to notify the appellant pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'). 7 The Federal Magistrate was unable to find evidence to support the contention of bias, and found that the Tribunal's findings were reasonably open to it on the material and evidence before it. Her Honour also found that no lack of logic giving rise to jurisdictional error was apparent. In relation to the s 424A of the Act, her Honour found that the Tribunal's decision was based on the oral evidence of the appellant, and was therefore exempted by s 424A(3)(b). Her Honour also considered other grounds, such as breach of s 425 of the Act, but found no jurisdictional error was established. Her Honour therefore dismissed the application.

PRESENT APPEAL 8 The notice of appeal raised the following grounds: 1. The Tribunal was biased. 2. The Tribunal had failed to notify the appellant pursuant to s 424A of the Act. 3. The Tribunal's decision was not based on a rational or logical foundation.

The Tribunal was biased 9 The appellant argues that the Tribunal failed to look at his claims and evidence impartially with an independent mind. 10 Actual bias exists where the decision-maker has a pre-existing state of mind so as to render him or her unwilling or unable to undertake any proper evaluation of the relevant evidence: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. 11 The test for apprehended bias for a decision of a Tribunal is formulated by reference to a hypothetical fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal. If this hypothetical observer would apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided, then the allegation of apprehended bias will be made out: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. 12 The circumstance of the present case give no indication of actual or apprehended bias on the part of the Tribunal. 13 The Federal Magistrate found nothing in the Tribunal's reasons for decision to establish bias in the sense of predetermination or to establish any claim of apprehended bias from the perspective of a reasonably well-informed lay observer. 14 In its decision the Tribunal did not accept the appellant was a Falun Gong practitioner in either Australia or China or that he had any association with Falun Gong practitioners in China as the appellant knew very little about Falun Gong. The Tribunal found the appellant's evidence to be inconsistent and that the appellant had invented his claims. The Tribunal did not accept the appellant was a truthful witness and found no plausible evidence that the appellant had suffered or would suffer persecution in China. 15 The findings of the Tribunal had a clear evidentiary basis. The Federal Magistrate found that the findings of the Tribunal were open to it on the evidence and material before it. The Tribunal appears to have given full consideration to all of the appellant's evidence and discussed with the appellant each of the matters that led to the decision. There is no substance to suggest that the Tribunal did not bring an open, independent mind to the decision, or that a well-informed lay observer would perceive the Tribunal to be biased.

Breach of s 424A 16 This is not a matter in which the Tribunal's s 424A obligations were engaged. The decision of the Tribunal is based upon information obtained from the appellant's oral evidence, which comes within the exception to s 424A in s 424A(3)(b). The Federal Magistrate was correct in so finding.

The decision of the Tribunal was not based on a rational or logical foundation 17 It can be accepted that a decision maker must not make unsupported, unreasonable or capricious decisions or conclusions or fail to address significant evidence. 18 However, the Federal Magistrate found no lack of logic giving rise to a jurisdictional error on the material that was presented to the court. The findings made by the Tribunal were reasonably open to it on the material and evidence before it. Its factual findings were based on a consideration of the plausibility of the appellant's claims as well as an assessment of the truth and internal inconsistency of the appellant's oral evidence. 19 The Tribunal did not misunderstand the appellant's claims or overlook any relevant material. The Tribunal understood the appellant's claims as demonstrated by their questions and discussions with the appellants. The Tribunal addressed all of the evidence before it, and rather than ignoring evidence, it has been rejected or given little weight. It is open to the Tribunal to consider the weight given to any particular piece of evidence. 20 There is no evidence in the decision of the Tribunal of any critical flaws in its reasoning process. All of the appellant's claims and evidence were considered by the Tribunal before it reached its decision and the conclusions made were open to the Tribunal on the evidence before it. 21 Sections 65(1) and 36(2) of the Act provide that a decision-maker may only grant a protection visa if he or she is satisfied that the applicant meets the definition of a refugee as set out in Art 1A(2) of the Refugees Convention: see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]. Generally, it is the applicant's responsibility to put sufficient information before the Tribunal so as to enable it to establish the relevant facts and then whether the statutory elements are made out: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 22 The merits of any claim to protection, including matters going to the weight to be given to claims or evidence and the credibility that is attached to these claims or evidence, is for the Tribunal to determine. The Tribunal does not have to possess evidence rebutting the claims before finding that a particular assertion is not made out. Nor is the Tribunal required to accept uncritically any of the claims made by the applicant. 23 In my view, the decision of the Tribunal was based on a rational and logical foundation.

CONCLUSION 24 In my opinion, the approach of the Federal Magistrate and her Honour's conclusion were correct. 25 The appeal should be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 15 August 2008 Counsel for the Appellant: In person

Solicitor for the First Respondent: DLA Phillips Fox