SZJBD v Minister for Immigration and Citizenship

NEW SOUTH WALES DISTRICT REGISTRY NSD 1706 of 2008

Transferred FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT BUCHANAN J: 43 This application for judicial review found its way to a Full Court of this Court because, although it was an application made to the Federal Magistrates Court of Australia ("the FMCA"), it was thought to involve a matter of general importance concerning challenges to the quality of interpretation services offered by the Refugee Review Tribunal ("the RRT"). As will become apparent that part of the proceedings in due course lost its significance. 44 The applicant arrived in Australia on 19 May 2003 and on 30 June 2003 lodged an application for a protection visa. The basis of the applicant's claims as originally expressed in her application for a visa was that she had learned to practice Falun Gong from her uncle who was a Falun Gong practitioner who had been placed in a detention centre in January 2000 and remained there. She worked for a large company and had not come to the notice of Chinese authorities but had become so disillusioned with the approach of the Chinese authorities that, having regard to her uncle's fate, she decided to leave China and come to Australia for protection. She was worried that sooner or later the authorities would become aware that she was involved with Falun Gong and would take action against her. 45 On the same day that the application for a protection visa was made, 30 June 2003, a delegate of the first respondent's predecessor refused it. On 4 August 2003 the applicant applied to the Refugee Review Tribunal ("the RRT") for review of the delegate's decision. 46 The applicant elected not to attend a hearing before the RRT and her claims were therefore dealt with initially by the RRT without the assistance of any direct evidence from her. That was despite the fact that she was advised in writing on 15 January 2004 that the RRT was unable to make a favourable decision based solely upon the information she had submitted. The RRT decided that it was not able to be satisfied as to the truth of her claims and in a decision handed down on 4 March 2004 affirmed the delegate's decision not to grant a protection visa. That decision of the RRT (the first RRT decision) was set aside by the FMCA on 14 March 2006. It would appear that the order of the FMCA was made by consent. The matter was therefore remitted to the RRT for further hearing. The RRT, on the second occasion, was differently constituted. On this occasion the applicant attended and gave evidence. In a decision handed down on 27 June 2006 (the second RRT decision) the RRT again affirmed the decision of the delegate not to grant a protection visa. 47 To understand the context in which these conclusions were reached it is relevant to understand a little about how the applicant advanced her claims at various times and the way in which they were assessed. 48 The decision of the delegate appeared to accept the applicant's claims to have been a Falun Gong practitioner in China at face value. The delegate was, however, not persuaded that the applicant was of any interest to Chinese authorities or would be subject to persecution. The delegate said: "The applicant's claims are very vague and unsubstantiated. The information provided by the applicant regarding her Falun Gong activities is lacking in essential detail. There is no evidence before me that the applicant was an active leader or organiser of Falun Gong in China and hence, a person of potential interest to the Chinese authorities. The applicant departed China on 18/5/03, legally and without difficulty. The fact that the applicant was able to leave China legally, on a passport issued to her in her own name, indicates that she has been thoroughly vetted by the security authorities in her home country and was not of adverse interest to them." and: "Although there may be some restriction as to how the applicant is able to practise Falun Gong in China, I do not consider this restriction amounts to persecution. Information available on the Falun Gong web site indicates that public and group activities, which may draw the adverse attention of the PRC authorities, are not fundamental to the practice of Falun Gong." 49 The first decision of the RRT expressed the conclusion that the applicant's claims were without any substance having regard to the fact that she had foregone the opportunity to provide detailed information in support of them and, in any event, were without sufficient substance to justify the grant of a protection visa. The RRT said: "… despite the clear wording of the DIMIA and RRT application forms, the DIMIA decision record and the RRT letters, the applicant's claims remain vague, contradictory, unsupported and unconvincing and she has done nothing to remedy or explain the identified and obvious deficiencies in her case." and: "I do not believe that a person in genuine fear of persecution would ignore so many opportunities to expand on or defend key aspects of her claims and to answer questions about them, especially when she had been informed twice that the case which she had presented to date was not sufficient to secure the protection visa for which she has applied. The ignoring of the RRT hearing is particularly important because, against the above background, it is only by my asking the applicant detailed questions in person, including about Falun Gong practice and theory, that I would be able to satisfy myself that there is any truth to her claims. It cannot be argued with any credibility that the applicant has been unaware of how to present her claims - she has had the assistance of an experienced adviser. In all the circumstances, I do not believe that the applicant has ever been associated with Falun Gong or that she has come or would come to the adverse attention of the Chinese authorities." and: "… if I am wrong in my conclusion that she is not a Falun Gong practitioner, I see no reason to suppose that she was or is other than an ordinary Falun Gong practitioner. I say this because, despite the many opportunities she has had, she has not claimed any special prominence and she has conspicuously failed to offer any evidence of past or present involvement with Falun Gong or past or present prominence in Falun Gong or in protests against the anti-Falun Gong policy of the Chinese government. So if she is or was a practitioner, I conclude that she was or is an ordinary one. However, being ordinary does not help her protection visa application because the country information leads me to conclude that an ordinary practitioner is not of adverse interest to the Chinese authorities. That conclusion is supported by my other conclusions above. If the applicant returned to China, I conclude that she would be of no adverse interest to the Chinese authorities. If she is a Falun Gong practitioner, which I do not believe, I note from the country information that public exercises are not an essential or fundamental part of Falun Gong and that ordinary adherents of Falun Gong who practise privately are unlikely to come to the attention of the authorities." 50 Notwithstanding, therefore, the fact that the first RRT decision was later set aside the applicant was on clear notice that her claim to be a Falun Gong practitioner, and to fear persecution for that reason, would need to be justified. 51 The applicant did attend to give evidence when the matter resumed before the RRT but the RRT expressed findings in the second RRT decision which were to the effect that the applicant was untruthful. It said: "The Tribunal is not satisfied with the applicant's credibility. The applicant's evidence at hearing was such that there were numerous inconsistencies at her Tribunal hearing. The Tribunal finds … the applicant to be an unreliable witness, who has fabricated her claims with a view to promoting a claim for refugee status. The Tribunal cannot give weight to the applicant's claims or evidence." 52 The RRT went on to give a list of examples relating to her knowledge of Falun Gong and the evidence which she gave concerning her residential arrangements in China. Then the RRT said: "The Tribunal finds that the applicant has been untruthful to the Tribunal in her claims and evidence. The Tribunal finds the applicant to be completely unreliable and lacking in credibility, and further finds that there was no interest in her by the PRC authorities - or anyone else in the PRC - in the past nor would there be any adverse interest in the applicant in the reasonably foreseeable future for any Convention related reason." 53 Normally such findings of fact would be difficult to challenge and even more difficult to disturb. This Court, and the FMCA, may only review decisions of the RRT for jurisdictional error. In light of the previous history it might be thought that a clear case would need to be demonstrated to establish that the applicant had not had a sufficient and fair opportunity to prepare herself and advance her case. 54 After the rejection of her application in the second RRT decision the applicant, on 21 July 2006, again commenced proceedings in the FMCA. She sought judicial review of the second decision of the RRT. The substantive grounds of the application were as follows: "1. The Tribunal had bias against me when considered my application for a protection visa. 2. The Tribunal failed to consider my claims. 3. The Tribunal failed to carry out its statutory duty. The Tribunal did not observe S424 of Migration Act 1958 when considered my application for a protection visa. 4. The Tribunal did not provide me an adequate opportunity to respond the substance of the information. 5. A copy of the decision letter is attached." 55 Grounds of this kind appear frequently in such applications for judicial review. Sometimes they are described as formulaic. They certainly do not have much content expressed as barely as these grounds were. The Minister filed a response on 25 August 2006 complaining that the application was not particularised. On 15 November 2006 the applicant filed an amended application stating three grounds as follows: "1. The Tribunal failed to carry out its statutory duty. … 2. The Tribunal had bias against me and did not consider my application for a protection [visa] according to S91R of the Migration Act 1958. The Tribunal failed to consider my claims. 3. The Tribunal did not provide me an adequate opportunity to respond the substance of the information." 56 Grounds 2 and 3 were not particularised. Ground 1 was supported by particulars to the effect that the Tribunal had failed to comply with the provisions of s 424A of the Migration Act 1958 (Cth) ("the Act") which requires an applicant for a visa to be given particulars of information that the RRT considers "would be the reason, or a part of the reason, for affirming the decision that is under review" and to ensure that the applicant understands the relevance of such matters to the review being undertaken. The new grounds and particulars added little, if at all, to the identification of a jurisdictional error by the RRT. 57 The application for judicial review to the FMCA came before that court for hearing first on 17 October 2007, and was dismissed on the same day (SZJBD v Minister for Immigration and Anor [2007] FMCA 1829). During the course of the hearing before the FMCA the applicant requested that the federal magistrate listen to a tape of the proceedings before the RRT because "a lot of the questions that were asked by the Tribunal were misleading". However, the federal magistrate concluded that the request had been withdrawn during the proceedings so far as it was addressed to a complaint about misleading questions. It is important to record the particular context in which this request was made and dealt with. The learned federal magistrate said (at [3]): "3. In the course of the Tribunal hearing the applicant was asked a series of questions which have been helpfully set out at [CB 94-96]. They were questions both about the applicant's actual knowledge of the Falun Gong movement and the master Li Hongzhi and her own association with the movement. During the course of the hearing today the applicant told me that she wished the court to hear the tape because, she said, a lot of the questions that were asked by the Tribunal were misleading. I asked her if she could give an example and she gave me one which, so far as I now recall, was when the master left China for the United States. That question is contained in the court book as were some of the other questions that she referred me to. In the end the applicant indicated that as these questions appeared to be available to me from the court book it was not necessary to listen to the tape." (Emphasis added.)

58 The federal magistrate also rejected the claim of bias. 59 The federal magistrate then referred to a complaint made orally to him at the hearing which was not revealed by the amended application for judicial review with which he was dealing. He said (at [12]): "12. Finally, before me the applicant claimed that she was badly treated by the interpreter who, she said, was rude to her and treated her as if she was a prisoner. She does not tell the court that she made any complaint about the interpreter until today to anyone. She has not produced any independent evidence of this allegation. To the extent that the bullying might be manifested in the tape recording I would gain nothing from listening to that because I do not understand the Mandarin language and it would definitely require some expert opinion being provided from a person who does understand Mandarin and the nuances of interpretation. I am, therefore, unable to take this complaint of the applicant's any further although I note that it is unlikely to constitute the type of conduct that would allow a court to find that the provisions of s.425 of the Migration Act 1958 (the 'Act') had not been complied with." 60 The applicant appealed to this Court and was successful (SZJBD v Minister for Immigration and Citizenship [2008] FCA 922 ("SZJBD") although the complaint made on the appeal appears to have been differently focussed than it was in the FMCA. The judge of this Court who heard the appeal recorded (at [5]): "5 The appellant appeared in person before me. She complained that the Tribunal had been biased and that the Federal Magistrate should have listened to the tape. I have construed the appellant's contention to be that the Federal Magistrate erred in failing to receive into evidence the tape recording of the proceeding which the appellant relied upon in support of the ground of review founded on apprehended bias." and (at [19]): "19 The effect of what the appellant said to me by way of oral submission was that the Tribunal had asked questions which indicated that it had a closed mind on whether she was a Falun Gong practitioner and that the Tribunal and interpreter had acted oppressively during the hearing. The appellant also said that the Federal Magistrate should have listened to the tape of the hearing before the Tribunal. As I have previously mentioned, I have treated the appellant's complaint to be that the Federal Magistrate erred in failing to accept the tender of evidence advanced to support the appellant's complaint of apprehended bias." 61 His Honour then cited the following passage from Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 where the High Court said (at [30]-[31]): "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." 62 Applying these observations his Honour said (at [21]-[25]): "21 In my view, the true nature of the complaint which the appellant was making before the Federal Magistrate, when she referred to the 'misleading' nature of the Tribunal's questions and the alleged bullying by the interpreter, was a complaint of the nature referred to in these observations of the High Court. That is, that the hearing was conducted in a matter that might give rise to the inference in the mind of a fair-minded lay observer that the Tribunal did not have an open mind on the question of whether she was a Falun Gong practitioner. 22. In my view, in the overall context of the appellant's complaint, the Federal Magistrate took too literal a view of the appellant's complaint by treating the complaints as to the 'misleading' questions and the bullying by the interpreter as discrete complaints rather than incidents of a complaint of apprehended bias. 23. Some of the questions the Tribunal asked of the appellant appeared to be sufficiently peripheral as to cause some concern to the Federal Magistrate. It was at least arguable that the questions were capable of causing a fair-minded lay observer to query whether questions of this kind would be asked by a person seeking fairly to test whether the appellant was an adherent to Falun Gong. Further, the Federal Magistrate correctly expressed some disquiet about the use of the word 'infinitesimal' by the Tribunal in describing the appellant's knowledge of Falun Gong. In other words, there was enough before the Federal Magistrate to preclude a finding that the appellant's claim of apprehended bias was so frivolous or otherwise devoid of merit, that she should not be permitted to advance evidence in support of it. 24. Although new evidence will not generally be admitted on the hearing of an application for judicial review, evidence of what occurred at a hearing in support of a complaint about the absence of procedural fairness or bias in relation to the hearing, is an exception to the general rule, and may be admitted. (See MZXLD v Minister for Citizenship [2007] FCA 1912 at [10]-[11]). 25. In my view, the Federal Magistrate erred, in the circumstances of this case, in failing to admit the tape of the hearing as evidence in support of an allegation of apprehended bias. This occurred because the Federal Magistrate failed to treat the complaint about the so called 'misleading' questioning and oppressive behaviour by the interpreter as comprising incidents of a complaint of apprehended basis. It was not a sufficient answer to the appellant's real concern to point out, as did the Federal Magistrate, that the questions which the appellant could remember as being objectionable, were recorded in the Tribunal's reasons and that there was, therefore, no need to listen to the tape. This missed the point that the appellant was trying to make, namely, that the unreasonableness of some of the questions indicated a predisposition on the part of the Tribunal to find that the appellant was not a Falun Gong practitioner and the hearing was conducted in a way that reflected that attitude. Further, it was no answer for the Federal Magistrate to say that he would derive no assistance from the tape because he did not understand Mandarin. It may have been possible for the Federal Magistrate at the very least to discern from the tone of the interchanges whether there was substance to the appellant's complaint. In any event, the Federal Magistrate could have used the services of an interpreter. In other words, the Federal Magistrate erred in determining, as he, in effect, determined, that the tape could not possibly be of any probative value in respect of the allegation of apprehended bias." (Emphasis added.)

63 The passages I have emphasised illustrate that there were two bases on which it was concluded that the federal magistrate should have listened to the tape recording of the hearing before the RRT. The first was that listening to the tape recording was relevant to an evaluation of the applicant's claim that the RRT was biased although, in fairness to the federal magistrate, it should be noted that this complaint does not appear to have been before him in the same terms, either in writing or orally. The second basis upon which the judge who heard the appeal concluded that it was necessary to listen to the tape was that it was relevant to an evaluation of the criticisms made by the applicant about the standard of interpreting and the conduct of the interpreter. 64 The matter was remitted to the FMCA. During the course of further proceedings before the FMCA a further amended application was filed on 13 October 2008. The grounds upon which the applicant then relied were stated as follows: "1. The Tribunal failed to consider the fact that I have been practicing [sic] Falun Gong in Australia, and my activities here may cause further persecution to me on my return to China. 2. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal therefore failed to consider my application for a protection visa in accordance with S424A of the Migration Act 1958. I was not given an opportunity to comment upon the reason. The Tribunal was required to provide particulars of the information that was the reason or part of the reason for affirming the decision and was required to explain why the information is relevant and provide the applicant with an opportunity to comment upon it. The above mentioned had to be provided in writing." (Reference to authority omitted.)

65 It will be noted that the further amended application filed on 13 October 2008 did not raise or repeat any allegation of bias or the other complaints made orally by the applicant earlier before the FMCA or before this Court on appeal. However, the federal magistrate concluded nevertheless that those complaints had not been abandoned. He recorded (SZJBD v Minister for Immigration and Anor [2008] FMCA 1485 at [10]): "It will be seen that this Amended Application, which was clearly not written by the applicant, who cannot write English, makes no mention of the complaints raised before me and before Siopis J. Whilst it would be easy for me to say that the Amended Application supersedes the original application and the complaint made orally about the interpretation and then decide the matter on the merits without further investigation of those complaints, I would only do so if the applicant specifically resiled from them. I asked the applicant today whether she did that and she told me that she did not." He then said (at [11]): "The issues raised here are novel and difficult. I am faced with what I believe is conflicting authority from the Federal Court on what steps I should take. If I took the wrong step the matter would come back into this court yet again. Luckily, there is provision in the Rules of this court to transfer matters to the Federal Court on the court's own motion (Rule 8.02(1))." 66 After giving attention to the matters prescribed by s 39(3) of the Federal Magistrates Act 1999 (Cth) (matters to be taken into account in such a circumstance) he transferred the matter to this Court. 67 When the matter was referred to this Court the Chief Justice directed that it receive the attention of a Full Court. I will return to the issues which it is necessary for the Full Court to decide in the present matter, having regard to the facts of the present case. First, it is convenient to say something about the suggested issue of principle which occasioned the transfer of the proceedings to this Court. 68 I do not think that there is any conflict in the judgments of this Court. The conflicting course of authority suggested by the federal magistrate consisted of the earlier appeal judgment in the present matter on the one hand and two judgments of Allsop J (NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1091 and [2004] FCA 159 ("NAPS")) on the other hand. Allsop J referred in those judgments to the possibility that expert evidence might be necessary in some cases to make good an allegation of inadequacy of interpretation and discussed who might bear the burden of providing such evidence - i.e. an applicant, a respondent Minister or the Court itself through a Court appointed expert. Evidently Allsop J did not think either of the NAPS judgments dealt with any issue of principle as neither was assigned any catchwords. 69 The cases referred to by the federal magistrate (NAPS and SZJBD) were each decided for reasons which were highly specific to the case in question. In the first NAPS judgment ([2003] FCA 1091) Allsop J recorded an assertion, contained in a submission sent to his chambers, of inadequate interpretation before the RRT. When the matter was called on for hearing, his Honour made plain to the applicant that his assertions of failure of the interpreter were matters of evidence and not matters of submission and that the applicant could not simply assert them without them becoming evidence. Allsop J adjourned the matter to allow the applicant time to file and serve an affidavit deposing to any matters of evidence on which he wished to rely in support of the submissions he had sent to his Honour's chambers. However, when the matter resumed before his Honour ten days later, the applicant failed to appear and the matter was again adjourned. His Honour indicated that although it was open to the Court to appoint an expert to examine allegations of inadequacy of interpretation he did not propose to do so in the circumstance of that case. His Honour said (at [11]): "11 The Minister does not wish to lead any evidence about the interpreting. He proposes to deal with this application as currently framed on the basis that the applicant may wish to read this evidence. If the applicant wishes to call expert evidence he may do so only if he applies for leave to file further evidence, the timetable for evidence having been completed. In all the circumstances I do not propose to appoint a Court expert. I propose to have this matter set down for hearing without any further delay." 70 At a later hearing his Honour dealt with a series of specific allegations by the appellant about the quality of interpretation. Those complaints were rejected. His Honour concluded ([2004] FCA 159 at [78]): "78 I am not satisfied that the Tribunal hearing miscarried in any way by reference to the asserted interpreting errors. I refer, in particular, to the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 and to the decision of Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759. It is unnecessary for me to discuss the nature and content of the obligation on the Tribunal to provide a hearing or to discuss the level or quality of interpreting being required for any hearing. It is sufficient to say in this case that I am not satisfied that there was any substantive defect whatsoever in any of the interpretation." 71 No issue of general principle arises from the observations of Allsop J in either of the NAPS judgments. They represent the practical application of the general principle that allegations of jurisdictional (or other) error must be established, if necessary by appropriate evidence. SZJBD presents no conflict with that generally accepted approach. On the facts of the present case the judge who heard the previous appeal simply concluded that it was an error, in the particular circumstances of the case, not to listen to the tape recording of the hearing before the RRT and observed, unexceptionally, that any language difficulties could be overcome, if it was necessary to do so, with the aid of an interpreter. That observation was directed to the statement by the federal magistrate, set out earlier, to the effect that it would be futile for him to listen to the tape because he does not understand Mandarin. However, the judge who heard the appeal was clearly not intending to lay down any general rule, much less that the Court itself should assume the cost of an interpreter as the federal magistrate appeared to think. 72 It has been held that an inadequate standard of interpretation may interfere with the right of an applicant to present a case to the RRT to such a degree that jurisdictional error has occurred (see e.g. Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 ("WACO")). Occasionally such an allegation upon examination sustains a conclusion that there has been a failure to afford the hearing which s 425 of the Act guarantees (see e.g. M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212). But the opposite conclusion may also be available (see e.g. Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [39], WACO at [63]-[69], SZKLX v Minister for Immigration and Citizenship [2007] FCA 1414 at [12]). Regardless of the outcome of different cases arising from different factual circumstances, however, the discussion in those cases reveals no real difference of principle. 73 When an allegation is made that inadequate interpretation has effectively deprived an applicant of the hearing guaranteed by s 425 of the Act the obligation rests upon the applicant in the ordinary way to show that jurisdictional error has occurred. The power of the Court to appoint an expert does not diminish or relevantly qualify that obligation. The facility of the Court to ensure that justice is done is not a substitute for the necessity to make out a case. It is a special power to be used in appropriate circumstances but it is not available to applicants just to fill a gap in their own cases. The facts of the present case, to which I will now return, show that it was not appropriate in the present case. 74 As will earlier have been noted, the essential ground upon which the appeal from the federal magistrate succeeded in the present matter was that he had declined to listen to a tape recording of the proceedings before the RRT. In preparation for the hearing before this Court the parties filed written submissions. The applicant, on this occasion, had the assistance of pro bono counsel, Ms Spruce. Pro bono counsel make an important contribution to the work of the Court and the present case was no exception. In written submissions (to which a further amended application was attached) filed on behalf of the applicant the allegation of inadequate interpretation found written expression for the first time. The grounds of the further amended application were stated as follows: "1. The Tribunal failed to provide an acceptable or adequate standard of interpreting with the result that the Tribunal failed to afford the applicant an opportunity to present her case in contravention of s 425 of the Migration Act: (a) The interpreter did not meet the standard of competency required in that he used a hostile and bullying or otherwise inappropriate tone of voice when speaking to the Applicant; (b) As a result, the Applicant was not able to participate freely and fully in the hearing or effectively put her case because she was forced to communicate with the Tribunal through an interpreter who, instead of assisting the Applicant, subjected the Applicant to bullying. 2. The decision of the Tribunal was affected by apprehended bias with the consequence that there was a breach of procedural fairness, having regard to at least: (a) The conduct of the interpreter who, as the voice of the Tribunal, adopted a bullying and hostile or otherwise inappropriate tone; (b) The series of questions that were asked by the Tribunal which were of doubtful relevance in determining whether the Applicant was a genuine Falun Gong practitioner; (c) The Tribunal's finding that the Applicant was an unreliable witness who lacked credibility in circumstances where the Applicant's responses could not fairly be assessed because she was being bullied and treated in a hostile or otherwise inappropriate manner by the interpreter (d) The description by the Tribunal in its reasons of the applicant's knowledge of Falun Gong as being 'infinitesimal'." (Original emphasis.)

75 At the hearing of the application before the Full Court no objection was taken to us listening to the tape recording of proceedings before the RRT, although counsel for the Minister, Mr Kennett, made no concession that it would have any probative value. Accordingly, we listened to the tape recording of the proceeding before the RRT and admitted into evidence both the tape recording itself and a transcript of that tape recording. 76 There was nothing about the tone of voice in which questions were administered to the applicant by the RRT or, so far as I could tell, from the way in which the interpreter spoke, which gave any support to an apprehension that the interpreter was hostile or bullying or that there was any inappropriate conduct on the part of the member of the RRT. It did not appear that the transcript of the tape recording was materially inaccurate although, not surprisingly, it did not record unspoken matters such as pauses, hesitation and occasional sighs. 77 Ms Spruce had not earlier heard the tape recording. She had been relying on instructions. She was able to take further instructions over the luncheon adjournment, after the tape had been played, about how the applicant wished to proceed. She informed us when the hearing resumed that the applicant did not propose to maintain any suggestion that she had lost an opportunity to present her case in accordance with s 425 of the Act as a result of the standard of interpretation. So it was, on the facts of the present case, that the issue was resolved without the necessity to enter, much less pronounce upon, the area of suggested conflict which occasioned the transfer of proceedings to this Court. In the result, the transfer of proceedings to this Court was unnecessary. It could, and should, have been avoided by taking the step directed by the appeal judge of listening to the tape. 78 However, that was not to be the end of the matter. There were a number of errors and infelicities in the second RRT decision which may have taken on a different significance had the tape recording of the proceedings provided a foundation for the suggestion of hostility on the part of the member of the RRT. As I have said, it did not. Nevertheless, counsel for the applicant sought an opportunity to make further submissions. The proceedings were adjourned and directions were made for the filing of a statement of the grounds for the application upon which the applicant wished, finally, to rely and the filing and exchange of further written submissions. 79 The applicant in due course sought, and was granted, leave to file another amended application. The amended application alleged jurisdictional error in two respects. It was contended that the decision of the RRT was affected by apprehended bias. It was also contended that the RRT had breached the requirements of s 424A of the Act which, as earlier indicated, imposes an obligation upon the RRT to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming a decision that is under review. Section 424AA now permits the information to be given orally at a hearing before the RRT but that section was not in operation at the relevant time. At the time of the hearing before the RRT the information had to be provided in writing and an applicant given a period in which to comment. 80 In support of the allegation of apprehended bias, counsel for the applicant, at the further hearing of the matter, made a number of criticisms about the nature of the questions put to the applicant by the RRT concerning her claim to be a Falun Gong practitioner. Some of the questions were highly specific to the political history of the Falun Gong movement and its founder and sought the precise dates on which key events took place. Some of the (incorrect) answers, or an inability to answer, were used by the RRT as the basis for conclusions that the applicant's knowledge was "minimal" and "infinitesimal". In turn, conclusions of that kind led to a finding that the applicant was not a Falun Gong practitioner and was of no interest to authorities in China. Counsel for the applicant argued that the applicant was relatively uneducated and that the style, content and unreasonable specificity of the questioning gave adequate support to a reasonable apprehension that the RRT was not engaged in a genuine exploration of the applicant's state of knowledge but was predisposed to a conclusion that the applicant was not a Falun Gong practitioner. 81 It has only been extreme cases which have justified a conclusion of reasonable apprehension of bias arising from the conduct of proceedings in the RRT. One such case was NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 ("NADH"). The judgment of Allsop J (with whom Moore J and Tamberlin J agreed) reveals the unusual and compounded features which were present in that case. Some idea of those features may be gleaned from Allsop J's remarks at [115]: "Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly." and at [136]: "A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics. It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a mater of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making. Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided. Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task." 82 In my view the criticisms which were made in the present case, even accepting for present purposes that the questioning was highly specific and arguably onerous, do not sustain a conclusion of jurisdictional error by reason of reasonable apprehension of bias. Bias (or the reasonable apprehension of bias) is not demonstrated by the selection and administration of a series of highly specific questions, even if they take on the appearance of an examination. The critical issue is what use was made of the responses. An assessment of that issue must take account of the latitude allowed to administrative decision makers and to the nature of the process undertaken by the RRT. 83 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL") the High Court said (at [40]): "More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made." (Footnote omitted.) 84 The inquisitorial character of the review conducted by the RRT not only justifies, but necessitates, a process of inquiry in which, nevertheless, an applicant retains the burden of ultimate persuasion. Both aspects flow from the fact that a hearing under s 425 of the Act is only required if the RRT does not consider that it should decide the review favourably to an applicant on the basis of material already before it (see s 425(2)(a)). 85 There was no doubt that, apart from her inability to answer some questions at a highlevel of detail, the applicant's knowledge of the day to day practice of Falun Gong was, after a period of ten years, fairly seen as relatively underdeveloped. For example, the following exchanges occurred between the applicant and the RRT (according to the tape recording admitted into evidence): "MS MORRIS: Now how many exercises are there in Falun Gong? INTERPRETER: Five. MS MORRIS: And can you tell me what the names of those exercises are, please one by one. So exercise number one? INTERPRETER: (indistinct) MS MORRIS: Sorry, what is it? INTERPRETER: I think the Buddha extending his 1,000 arms in English. MS MORRIS: Right, yes, we'll have it in English. Right, and the second one? INTERPRETER: I don't know, I forgot. Altogether five sets. MS MORRIS: Well, if you're a practitioner and you're practising at least three times a week, perhaps you can tell me the others. Ok, so you told me the first, what are the others? INTERPRETER: I only practise this set the first set because I think after practising this set I feel very comfortable. MS MORRIS: You should be able to tell me the other ones - it's basic knowledge about Falun Gong. INTERPRETER: I forget them." and: "MS MORRIS: How can you practise if you don't know the exercises because you told me earlier that you couldn't remember the exercises so how can you practice if you don't know the exercises? INTERPRETER: I just like the first set. MS MORRIS: Well, if you have been going for so long how come you're only up to the first set? INTERPRETER: I just feel after practising this set it's comfortable. I just do not want to practise other sets." 86 At the end of the hearing the following exchange occurred: "MS MORRIS: One other concern I have relates to your lack of knowledge about Falun Gong itself. You claim to have been involved in Falun Gong since 1996, which is 10 years, and yet your knowledge of Falun Gong is minimal. Do you want to comment on that? INTERPRETER: No." 87 This question presumably referred, in a global way, to a number of earlier questions and answers including those concerning matters of detail but I think it right to conclude that the applicant was given a further and final chance to deal with or explain the apparent lack of knowledge of aspects of the Falun Gong movement which had earlier been exposed. Although she may not, at this stage, have appreciated that she had given incorrect answers to some questions there were many with which she appeared to struggle or simply professed no recollection or knowledge of detail. 88 The administration of a series of highly specific questions, and the account taken of the applicant's inability to answer them correctly, should be seen as elements only of a more general foundation for the conclusion that the applicant had not shown that she was, as she claimed to be, a Falun Gong practitioner. In my view it was not demonstrated that the RRT acted inappropriately in coming to that conclusion. In all the circumstances in my view, the argument that there was a sufficient basis for a reasonable apprehension of bias should not be accepted. 89 The remaining matter concerns the operation of s 424A of the Act. Section 424A(1) provides: "(1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it." 90 The information which, it was suggested, the RRT was obliged to provide to the applicant in accordance with s 424A(1)(a) concerned the Falun Gong movement and its founder Li Hongzhi. In particular, it was information that Li Hongzhi founded Falun Gong on 22 May 1992, that Zhuan Falun (a publication) was banned on 24 July 1996 and that a warrant for the arrest of Li Hongzhi was issued on 29 July 1999. These were matters about which the RRT put questions to the applicant. Her incorrect answers were used by the RRT as part of its assessment of her knowledge of Falun Gong and her credibility generally. The RRT, in its decision, recorded the substance of the exchanges with the applicant about these three particular matters as follows: "When exactly did he found Falun Gong. The applicant stated that it was in 1992. The Tribunal asked when in 1992. The applicant stated that it was September, (independent evidence states that it was 22 May 1992). The Tribunal asked when Zhuan Falun was banned. The applicant stated that it was in 1999 (evidence shows that it was 24 July 1996). (Zhuan Falun is a publication. According to information in the possession of the RRT, however, Falun Gong was banned in 1999.) When was an arrest warrant issued for Li Hongzhi by the PRC authorities. The applicant stated it was 1999. The Tribunal asked the applicant when in 1999. The applicant stated that it was 21 September 1999 (independent evidence shows it was 29 July 1999)." 91 These responses, and a number of others, were used to make a finding about the applicant's knowledge. The RRT said: "The Tribunal asked the applicant a series of questions about the background of Falun Gong, the philosophy of Falun Gong, the symbol of Falun Gong, and the actual practice of Falun Gong. The applicant's knowledge in all of these areas was minimal. The applicant either did not know, or in many instances was wrong in her answers." 92 The RRT then used this apparent lack of knowledge to reach the following conclusions: "In light of the applicant's complete lack of knowledge, the Tribunal cannot be satisfied that the applicant is has [sic] ever been involved in Falun Gong, and that she has simply fabricated these claims to enhance a claim for refugee status. The Tribunal finds that the applicant has been untruthful in her claims to fear harm from the PRC authorities arising from any involvement with Falun Gong" 93 Counsel for the applicant, in her written submissions, put the following argument: "23. First, the independent evidence was relevant to the statutory criteria pursuant to which the Tribunal was required to make its decision set out in s 36. The independent evidence was information that undermined the applicant's claim to have a well founded fear of persecution on the basis that she is a Falun Gong practitioner by falsifying the Applicant's answers to questions about Falun Gong so as to suggest the Applicant's knowledge of Falun Gong was erroneous or lacking. It was therefore relevant to the Tribunal's determination under s 36 of whether the Applicant was a person to whom Australia owed protection obligations under the Convention and was information that, if accepted, would adversely affect the Applicant's claim to be such a person. It was not, like the information considered by the High Court in SZBYR, information that did not contain a rejection, denial or undermining of the applicant's claim and would, if accepted, support the applicant's claim. 24. Secondly, as is plain from the Tribunal's reasons, the Tribunal did in fact rely on the independent evidence to falsify the Applicant's answers to questions about Falun Gong. The Tribunal used the independent evidence to support a conclusion that the Applicant had an 'infinitesimal' or 'complete lack' of knowledge about Falun Gong and was therefore not a person to whom Australia owed protection obligations… 25. The inference that should be drawn from the mattes referred to at paragraphs 23 and 24 above, is that the independent evidence was information that the Tribunal considered, in advance of its decision, would be part of the reason for affirming the decision under review and that the Tribunal was therefore obliged to give the Applicant particulars in writing so as to enable the Applicant to respond to the information, prior to the Tribunal making its decision." 94 At one point I was attracted to this analysis and also to the view that, in addition, both the falsification of the applicant's answers by reference to external material and the more general intermediate finding, that she showed a lack of knowledge of Falun Gong by her answers, were each "information" required to be disclosed in accordance with s 424A. There are a number of factors which have contributed to the opposite conclusion and to the view to which I have now come that those latter two elements in the process of reasoning followed by the RRT should be seen as part of its subjective appraisal of the applicant's claims and therefore, in accordance with the authorities, not "information" within the meaning of s 424A. That has led me to reject also the fundamental premise of the applicant's arguments. 95 There are structural indications in the Act to support the view that "information", as the term is used in s 424A of the Act, must refer to actual or potential evidentiary material from which analysis, fact finding and conclusions all, in due course, proceed. Section 430(1) of the Act provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) set out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 96 There are distinctions made, therefore, in s 430 of the Act amongst evidence, findings of fact, reasons for decision and a decision itself. The operation of s 430 of the Act received attention in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. There, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said (at [68]): "A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision." (Emphasis added. Italics in original.) 97 Callinan J said (at [212]): "Finding a fact is part of the process of reaching a decision." 98 The obligations of disclosure in s 424A were the subject of attention in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ("SZBYR"). The majority judgment in SZBYR (at [18]) approved a statement by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] that the word "information" in s 424A: "… does not encompass the tribunal's subjective appraisals, thought processes or determinations …" 99 The majority judgment went on (at [18]): "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." (See also Minister for Immigration and Citizenship v SZLFX [2009] HCA 31). 100 Finally, in Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 ("SZHXF") a Full Court recently gave explicit consideration to whether a finding by the RRT, that lack of expected knowledge was inconsistent with claimed religious affiliation, was information which was required to be disclosed under s 424A. The relevant finding by the RRT was extracted (at [3]) as follows (so far as here relevant): "Finally, … the applicant's answers to my questions at hearing about the difference between Ahmadi beliefs and mainstream Muslim beliefs were inadequate, especially for a person claiming a life time of practise [sic] of a religion and years of active proselytising." (Emphasis omitted.) 101 A judge of the Court had found that the RRT had not complied with s 424A. The information which was found at first instance not to have been disclosed (so far as here relevant) was: "that the first respondent's inadequate and inaccurate awareness of figures of religious significance to the Ahmadi - such as Mirza Ghulam Admad, Jesus Christ and the prophet Muhammad - which distinguished Ahmadi beliefs from Muslim beliefs indicated that he was not a genuine Ahmadi." 102 The Full Court said (at [15]-[16]): "15 The second matter to be considered relates to the Tribunal's mode of assessing the genuineness of the first respondent's case, namely, by testing his familiarity with the Ahmadi faith and how it differs from the Muslim faith. The material gathered from this questioning process, such as information about figures of religious significance to the Ahmadi, is not, of itself, the reason or part of the reason for affirming the Minister's decision that a protection visa should not be granted. Rather, it is a body of material used by the Tribunal as part of its evaluation exercise to weigh and consider the first respondent's claim that he is an Ahmadi and is therefore subject to persecution in Bangladesh. 16 In this case, the material relating to the Ahmadi faith was used by the Tribunal in a process of reasoning which allowed it to reach a conclusion that the first respondent's beliefs were not genuine. This conclusion was formed pursuant to reasoning which assumed that knowledge of important aspects of the Ahmadi faith is indicative of the authenticity of a person's assertions that he or she is a genuine Ahmadi. By way of example, where a question arises as to whether a person is a Christian, it may be relevant for the Tribunal to ask him or her questions about biblical incidents and teachings, and it would not be necessary for the Tribunal to produce to that person, as 'information' under s 424A of the Act, a copy of the Bible itself. Material which sets out basic religious beliefs is not information which is directed to a determination of an application. Rather, it is a tool which may be used to test and evaluate the credibility of evidence furnished to the Tribunal by an applicant or any other source." (Emphasis added.)

103 I can see no adequate basis for distinguishing SZHXF from the present case. 104 I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant's answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant. 105 The matters to which I have referred have persuaded me that my initial inclinations were unsound. In any event, I would have felt compelled not to depart from the analysis in SZHXF, which is a recent Full Court judgment on the same issue of statutory construction. 106 In the circumstances I would dismiss the application for judicial review. There is no reason why costs should not follow the result in the usual way. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1706 of 2008

transferred FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT PERRAM J: 107 I have had the advantage of reading in draft the reasons for judgment of Buchanan J with which I agree. There is, however, one further matter I would add. 108 At the initial hearing before in the Federal Magistrates Court, the magistrate refused to listen to the tape: SZJBD v Minister for Immigration [2007] FCMA 1829 at [12]. That determination was subject to an appeal to this Court. A judge of this Court determined that the decision not to listen to the tape involved error: SZJBD v Minister for Immigration [2008] FCA 922 at [25]. That judge set aside the federal magistrate's determination and remitted it to the federal magistrate for rehearing. In my opinion, there could thereafter be no circumstances which could justify the federal magistrate in refusing to listen to the tape. It is not open to a court lower in the judicial hierarchy to disobey a determination of an appellate court in that manner. 109 The federal magistrate took this course because he believed that two decisions of Allsop J, NAPS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1091 and [2004] FCA 159, required this result. I agree with Buchanan J that that conclusion was incorrect. However, even if it had been correct it would not possibly have justified the federal magistrate in disobeying the outcome of the very appeal from his own decision. 110 With respect to the federal magistrate, he appears to have confused the result in the appeal from his own decision with a precedent. It was not a precedent - it was a determination of the very issue before him and he was bound to implement it without further consideration. In the event, the time of three judges of this Court has been unnecessarily spent listening to the tape which should have been listened to by the federal magistrate. Had it been listened to, it would have been quite plain that the claim made by the applicant was without substance. That, in turn, would have averted two half days of this Court and the needless engagement of pro bono counsel. Given the voluntary nature of the latter matter, this is a particularly undesirable outcome. 111 I agree with the orders proposed by Buchanan J. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 28 August 2009 Counsel for the Applicant: Ms C Spruce

Solicitor for the Respondents: DLA Phillips Fox