SZIVH v Minister for Immigration

Federal Magistrate's decision 4 The grounds of review in the Federal Magistrates Court alleged that the Tribunal was biased, breached ss 424A and 425 of the Migration Act 1958 (Cth) ('the Act'), and made its decision based on unwarranted assumptions. 5 The Federal Magistrate rejected the assertion of bias. The Tribunal's reasons did not reveal either actual bias or an apprehension of bias. 6 The claim that the Tribunal acted in breach of s 424A of the Act was rejected. The Magistrate found that the claim was based on a misconception of the section. The assertion that the appellant was not afforded a fair and proper hearing, as required by s 425 of the Act, was also rejected. The Magistrate said he could not be satisfied that the appellant was denied the opportunity to give evidence, particularly in the absence of a transcript. 7 The final ground was rejected. His Honour found there was no irrationality or unreasonableness in the decision of the Tribunal and in the circumstances it was open to it to arrive at a conclusion as to the veracity of the claims. His Honour therefore dismissed the application.

Bias 8 There are three grounds of appeal. The first is that the Magistrate was wrong in concluding that the Tribunal acted properly in its findings. The particulars of this ground assert two instances of reasonable apprehension of bias and one consequential claim: (a) The Tribunal has held a prejudice that … 'given she has claimed to have utilised a false passport to enter Australia, the Tribunal believes she may have the capacity to have also secured a false PRC identity card. Accordingly, the Tribunal makes no finding as to whether the applicant's name is that which appears on the identity card. Be that as it may, the Tribunal is not satisfied that any finding as to the applicant's real name is in any way material to her claim to invoke refugee protection obligations in Australia ….' (b) The Tribunal has further held a prejudice that 'Given the applicant's youth, her lack of education, and her presentation at the Tribunal's hearing, I had doubts she had the capacity to even be asked to establish a branch of an unregistered Fuqing City based church in Haikou City; and even whether she was an adherent of such a church'. (c) … owing to his strong prejudice, the Presiding Member has, apparently, ignored my important claims and made its finding based on incorrect information or the information which has been misstated or misunderstood. 9 The fourth particular does not seem to be related to bias. It is that the Tribunal "made its decision mostly based on his unwarranted assumption". 10 The Magistrate dealt with pars (a) and (b) of the bias claim together at [30]: The Tribunal's reference to the possibility that the applicant had a false identity card as well as a false passport was, as I have shown, not treated by the Tribunal as a material part of its reasoning. It was a comment which was properly made and, in my opinion, would not give rise to any apprehension of bias, whether considered alone or in the context of the whole reasoning. Nor, in my opinion, does the Tribunal's reasoning which found implausible the claimed leadership role of a young woman in a proscribed religious movement raise any apprehension of bias. It was the Tribunal's statutory duty to assess the applicant's claims, and to arrive at findings as to their credibility. The fact that it ultimately made adverse findings does not suggest that it had a closed mind before it arrived at its decision. 11 The Magistrate correctly stated the law on apprehended bias. The question is whether "a fair minded lay observer might reasonably apprehend that the decision‑maker might not bring an impartial mind to the resolution of the question to be decided": Re Refugee Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]. 12 No error has been identified in the Magistrate's rejection of the bias claim. It is in my view impossible to derive from the passages relied on by the appellant any suggestion that the Tribunal did not bring an open mind to the consideration of her case. What the appellant is really doing under the purported umbrella of bias is disagreeing with the Tribunal's doubts about parts of her claims. Neither of the passages quoted in pars (a) and (b) of the bias particulars is expressed as an actual finding. The Tribunal's conclusion was ultimately based on its credibility findings which led it to reject all the appellant's main claims. As to par (a), the reasoning process that led the Tribunal to its conclusion on credibility did not include her having secured a false PRC identity card. As to par (b), the Tribunal's "doubts" about her claim to have been asked to establish a branch of an unregistered church may have formed part of its reasons for finding she lacked credibility. But it does not suggest actual bias or a closed mind. Disbelief of a claim is not to be equated with bias or reasonable apprehension of bias. 13 Paragraph (c) of the bias particulars is dependent on sustaining the bias claims in pars (a) and/or (b). That has not been done. In any event, there is no substance in the claim that the Tribunal ignored the appellant's important claims. It attended to those claims, but rejected them because it did not believe the appellant, for the reasons it gave. The claim that the Tribunal based its decision on incorrect information "or the information which has been misstated or misunderstood" lacks particulars. Neither the information that is incorrect nor the information that has been misstated or misunderstood is identified. In those circumstances the ground cannot be assessed. It appears simply to be the appellant disagreeing with unidentified findings. No jurisdictional error is thereby established. 14 The fourth "unwarranted assumption" particular is that because the appellant obtained a false passport, she could also have secured a false identity card. She says the Tribunal should have taken steps to verify the authenticity of the identity card. There is no substance in this complaint. First, the Tribunal's observations did not form part of its reasoning process. What it said was: Further, given she has claimed to have utilised a false passport to enter Australia, the Tribunal believes she may have the capacity to have also secured a false PRC identity card. Accordingly, the Tribunal makes no finding as to whether the applicant's name is that which appears on the identity card. Be that as it may, the Tribunal is not satisfied that any finding as to the applicant's real name is in any way material to her claim to invoke refugee protection obligations in Australia. Second, the "unwarranted assumption" is that the appellant "may have the capacity to have also secured a false PRC identity card". There was no "assumption" here. The Tribunal merely noted that given the appellant's use of one admittedly false document, she may have secured another. That is a logical process of reasoning. I repeat that there is no finding to that effect. Even if, contrary to my view, there were any illogicality involved, that is not an available ground of review: NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255.

Section 424A 15 The second ground asserts failure by the Tribunal to comply with its obligations under s 424A(1) of the Act because it failed to provide the appellant with information about the false passport and the identity card. 16 Section 424A(1) provides (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on or respond to it. The false passport was information provided to the Tribunal by the appellant. It is not "information" within s 424A(1). See sub‑s (3)(b). As indicated at [12], the Tribunal's observation about the identity card did not form part of its reasoning process. In any event, the Tribunal is not required by s 424A to give notice of its "doubts": SZBYR v Minister for Immigration [2007] HCA 26 at [18]. This ground fails. 17 The appellant's ground of appeal claims that the Tribunal did not make the appellant "understand particulars of the information or concerns that he would consider as a reason or part of the reason in his final decision". This treats s 424A as requiring the Tribunal to invite an applicant's comments on its thought processes and assessments of evidence given to it at the hearing. 18 In SZBYR v Minister for Immigration [2007] HCA 26 at [18] the High Court said: Finn and Stone JJ correctly observed in VAF v Minister for Immigration that the word 'information': does not encompass a Tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

Section 425 19 The third ground asserts failure by the Tribunal to comply with its obligations under s 425. The particulars are (b) The Tribunal failed to create a fair chance for me to give evidence at the Tribunal's hearing. (c) My right of presenting my arguments in relation to the decision under review has been deprived during the Tribunal's hearing. 20 Section 425(1) of the Act provides: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 21 The Magistrate said of this ground as it was presented to him: The Tribunal member is criticised in relation to his conduct of the hearing. It is said: Frankly speaking, I had great reservation about whether the Presiding Member indeed created a fair chance for me to give evidences at the Tribunal's hearing, because I strongly felt he was a person who had looked at my case with bias. He was very picky, and made me believe that his job was to 'pick up' some inconsistencies in my case. He never ever intended to create, genuinely and fairly, a chance for me to give my oral evidence in support of my claim. This might appear to be an argument suggesting a closed mind, or perhaps an argument that the applicant was denied the opportunity required by s 425(1) to 'give evidence and present arguments relating to the issues arising in relation to the decision under review'. However, in the absence of a transcript, I cannot be at all satisfied that these criticisms have any substance. It was the task of the Tribunal to assess the veracity of the applicant's narrative in a difficult case. It was proper for it to do this by testing the applicant in relation to the details of her narrative, and to present to her problems which it perceived in that narrative. 22 I have dealt with the bias claim at [12]. The claim that the Tribunal was "very picky" and that the appellant was not given a fair chance to give her evidence does not sit well with the Tribunal's description of how it proceeded: At the Tribunal hearing, I asked the applicant where she resided in the PRC, where her parents resided, what work her family had been engaged in and what education she had received. Then, rather than merely ask her questions about her material claims, I asked her to tell me in her own words why she feared returning to the PRC. The question I then asked arose from the evidence she provided at the hearing. I also advised the applicant in the course of the Tribunal hearing that I may, and did in fact, prefer the evidence I clarified with her at the Tribunal hearing. 23 The hearing before the Tribunal is of an inquisitorial nature. It involves testing claims and information for their veracity and believability. The Tribunal is not obliged to accept an applicant's claim and information as propounded and without inquiry. 24 In the absence of a transcript or at least some evidence about what transpired at the hearing, it is not possible to uphold this ground. The appellant was given the transcript of the proceedings at the Tribunal hearing, but has not relied on it. 25 Another s 425 argument was put to the Magistrate that I did not understand was being put to me. It is certainly not in the grounds of appeal. As put to the Magistrate it was that the Tribunal did not inform the appellant of the issues arising on the application for review. The Magistrate said: This criticism does not sit entirely comfortably with the criticism of the Tribunal being 'very picky'. From my reading of the Tribunal's statement of reasons, it seems probable that the Tribunal member did expose to the applicant in the course of the hearing problems it saw in her claimed narrative. I am unable to arrive at findings that there was a failure of the sort found by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63 in the absence of a transcript. On the evidence currently before me, it must have been apparent to the applicant's agent and to the applicant from the course of the proceedings in the Tribunal, including before it was reconstituted, that the genuineness and truth of her claims to have suffered persecution as a Shouter in China was generally in issue. 26 The passage from the Tribunal's reasons set out at [22] strongly suggests that the Magistrate was correct in saying that it must have been apparent to the appellant that the truth of her claim to have suffered persecution as a Shouter was in issue. As the Tribunal said, when she had finished saying why she feared returning to China, the Tribunal asked her questions about why she had a fear of persecution. Her whole story was based on fear of persecution because she was a Shouter. It is, to my mind, inconceivable that after she had explained her fear of return for this reason, the questions the Tribunal then asked about that evidence would not have alerted her to the fact that that was an issue in the case. That is especially so as the Tribunal told the appellant that "I may … prefer the evidence I clarified with her at the Tribunal hearing". The Tribunal did ask her why she had handed out religious material to random persons on a public street thereby increasing her chances of being caught. It also put to her that it was surprised that her parents had not prevented her from undertaking illegal religious activities. In addition the Tribunal put to her that it did not appear plausible that an illegal bible study group would have been conducted in a location that would have been easily seen and reported on. These and other matters that were put to the appellant would have alerted her to the fact that the Tribunal doubted the veracity of her claimed association with the Shouters.

Conclusion 27 None of the grounds of appeal has been established, and the appeal must be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Date of Hearing: 12 November 2007

Date of Judgment: 16 November 2007