SZKLK v Minister for Immigration

REASONS FOR JUDGMENT 1 The Applicant is a citizen of the People's Republic of China. 2 The Applicant arrived in Australia on 2 August 2006 on a temporary business visa. For that purpose he utilised a Chinese passport which had been issued to him in January 2005. On 28 August 2006, with the assistance of a migration agent, he applied to the First Respondent ("the Minister") under the Migration Act 1958 (Cth) for what is known as a protection visa. 3 The protection visa application was refused by a delegate of the Minister. That decision was later affirmed by the Refugee Review Tribunal ("the Tribunal"). On 31 January 2008, for reasons which were then published, an application for the judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court. 4 On 22 February 2008, the Applicant filed an application for an extension of time within which to appeal against the decision of the Federal Magistrates Court. Such an application was necessary because the time period within which, as of right, an appeal may be instituted from such a decision is within twenty-one (21) days from the date when the judgment appealed from was pronounced: O 52 r 15(1)(a), Federal Court Rules. The applicant fell outside that period by one day. 5 Strictly therefore, the question which falls for determination is whether or not an extension of time ought to be granted? 6 Were I minded to grant an extension, the Minister, with respect very properly in the circumstances, was content that the appeal be determined instanter with the submissions made on the extension application in respect of the merits of the appeal being treated as submissions made on the appeal. 7 Whether or not to grant an extension of time within which to appeal is a matter for the exercise of a discretionary power conferred by O 52 r 15(2). The terms in which that rule confers the discretionary power are such that the only consideration which is expressed to be relevant to its exercise is that "special reasons" must exist. Obviously enough, those "special reasons" must be found in the circumstances of the particular case. Something in the circumstances of one case that provides a "special reason" distinguishing that case from the general position may not when considered against the different context of the circumstances of another. The occasion for the exercise of the power is thus flexible. In Jess v Scott (1986) 12 FCR 187, at 196 the Full Court, after a review of authority, repeated a cautionary note which had earlier been sounded against the entanglement of a discretionary power to relax the requirement of a general rule, "in a web of rules spun out of the Court's discretionary decisions". 8 This cautionary note sounded, factors to which it is nonetheless usual to have regard are the length of the delay in compliance with the specified time for the lodgement of a notice of appeal, the explanation, if any, for the delay, what prejudice, if any, might be occasioned by the grant of an extension (although mere absence of prejudice is not determinative) and the merits of the proposed appeal. 9 The Applicant was represented (using the relevant letterhead as a guide) by a dual qualified solicitor and migration agent in the proceedings before the Tribunal and by that same person, acting in her capacity as a solicitor, as well as counsel in the proceedings before the Federal Magistrates Court. He appeared on his own behalf in the application to this Court, assisted by a Court appointed interpreter. 10 The Applicant exhibited a draft notice of appeal to his affidavit which supported the application for an extension of time. He did not in that affidavit offer any explanation for his failure to lodge the notice of appeal within the time prescribed by the rules. He did though, again with the assistance of an interpreter, give oral evidence in support of his application. He was cross-examined by counsel on behalf of the Minister. 11 In the course of his oral evidence the Applicant stated that he did not understand English at all. I have no doubt, from my observation of him then and otherwise in the course of proceedings, that this is true. He related that, not long after the decision of the Federal Magistrate, his lawyers had requested further funds, that he had no money and that he had tried to raise funds from a friend for the purpose of meeting this request without success. It was put to him that he knew that that he had 21 days to come to this Court. His response, frankly given and which I thought was an honest one, was that this was not what his then lawyers had told him but rather that he had been told by them "don't go past the 21st". The latter I took to be a reference to the 21st of February. 12 The Applicant's lawyers' advice was accurate as to when the prescribed appeal period expired and was furnished in suitably imperative terms but, at least to his recollection, it lacked an explanatory quality as to why it was important that he ought not to "go past the 21st". Precisely how long after the Federal Magistrates Court's decision he was given this advice was not made clear in the course of his evidence. 13 It is also relevant to note that the applicant's protection visa application disclosed that he had received but 6 years of primary school education in China, that his listed occupation was "unskilled worker" and that he had followed either that calling or, earlier, that of farmer in the course of his working life in that country. He is thus not only illiterate in English but also has limited formal education and no occupational background which might give him at least some insight into why it might be, in a judicial system, that the imperative quality which attended his then lawyer's reference to 21 February related to a statutory time limit. There can be no doubt that the applicant wanted to challenge the decision of the Federal Magistrates Court as soon as he became aware of it. Further, it seems inherently likely that, within the 21 day period, he was aware he had a right so to do. I mean no disrespect to him in expressing the opinion that there is a need though, given his illiteracy in English, limited education and occupational experience to guard against imputing to him too sophisticated an understanding of the conditions which attended his right of appeal. 14 In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, at [7] the Full Court gave a reminder that the purpose for which the discretion to extend time is conferred is to do justice between the parties observing of an example where the delay was short and no injustice would be occasioned to a respondent that justice would usually be done if the extension of time were granted. 15 There could be no shorter delay than that presented in this case. No prejudice to the Minister was asserted. In such circumstances the question of the applicant's prospects of success in the proposed appeal has a determinative quality in relation to the exercise of the discretion to extend time. 16 Only one ground of appeal is specified in that draft notice of appeal. That is that the learned Federal Magistrate erred in failing to find the following alleged jurisdictional error: "I have been a Falun Gong practitioner since 1999. I persecuted by the Chinese authorities. I presented the documents: "Labour Reform Relief Assessment Form" and "[Named] People's Hospital Diagnosis" issued by the official authorities were not accepted by the Tribunal. I think the Tribunal has bias against me. The Tribunal didn't take my claims into account. The Tribunal fell into jurisdictional error." [sic, omitting name of particular hospital] 17 The way in which the Applicant has formulated his ground of challenge reflects his lack of legal training. That does not mean that it fails to state a ground of challenge known to law. The Minister apprehended that the essence of the desired appeal was that the Federal Magistrates Court had erred in failing to set aside the Tribunal's decision on the basis that a reasonable apprehension of bias on the part of the Tribunal had been shown. This seems to me to be a fair way to approach the matter, especially having regard to the ground of review particularised in the amended application lodged in the Federal Magistrates Court. 18 In the amended application to the Federal Magistrates Court the apprehended bias ground was pleaded in this way: "1. The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias. PARTICULARS (a) The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision. (b) The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include: 1. The finding that the applicant has learned a few basic facts about the movement (that being Falun Gong). 2. The finding that the applicant had no apparent knowledge or understanding of the philosophy of Falun Gong. 3. The finding that the applicant had no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners. 4. The applicant had no apparent understanding of the key concept of "truthfulness, benevolence and forbearance". 5. The finding that the applicant had ample opportunity at the hearing to demonstrate his knowledge and/or understanding of Falun Gong. 6. The applicant's discussion of Falun Gong was trite and shallow. 7. The finding that the applicant's account shows that he had given seemingly low priority to Falun Gong in Australia. 8. The finding that the Applicant had changed his evidence in relation to why he had stopped exercising in a park. 9. The finding that the applicant's claim to have participated rather than just observed a singing performance in support of withdrawing from the Communist Party had evolved in response to the Tribunal's questions. 10. The finding that there was a change in evidence in relation to the applicant's contact with Falun Gong practitioners in Australia. 11. The finding that the information contained in the purportedly corroborative documents of the applicants claim as to having been sent to labour reform for detention for one year and suffered injury whilst detained are not genuine and that the Tribunal gives no weight to the documents. 12. The finding that the applicant's failure to advise the Department of the purportedly corroborative documents and the conclusion that the applicant did not hold the documents in October 2006 and that he concocted this claim as to having held the documents at that time. 13. The findings in relation to the document from the [the particular named] People's Hospital to the effect that as the document does not show how the injury came about it went against the claim that he was injured in the way he described. 14. The findings in relation to the applicant's differing statements as to his recollection of one of the names of the policeman who had struck him in May 2002. 15. The findings that the explanation by the applicant as to what happened to the persons who were detained and assaulted with him in May 2002 changed during the hearing thus suggesting that the applicant was fabricating claims and details as he gave evidence at the hearing. 16. The findings in relation to the two day difference appearing in the Labour Reform Relief Assessment Form and the finding that the applicant had dissembled in relation to the date of his detention. 17. The finding that the Tribunal's conclusions were reinforced by the applicant's arrangements to depart China. 18. The finding that there was a difference in the claims made in relation to how the applicant obtained his passport, such that it supported a finding that the applicant was fabricating claims and details as he gave evidence at the hearing. 19. The reliance on the passport being stated as having been issued on 21 January 2005, when the applicants claim was that the passport had been illegally obtained and the Tribunal elsewhere in the Decision accepted the prevalence of the irregular or improper issue of documentation. 20. The rejection of any need to consider whether the applicant or his wife had to get the assistance of a "connection" to get his passport on the basis that the Tribunal did not accept that the applicant was a Falun Gong practitioner known to the authorities. Yet the Tribunal relied on the applicants travel arrangements to find reinforcement for its conclusions concerning his Falun Gong practice. 21. The finding that the Tribunal did not accept that the applicant has had any association with the Falun Gong movement in Australia or has practised Falun Gong in Australia despite, and the failure to have regard to the evidence from the applicant's migration agent that she only represents applicants who claimed to have been Falun Gong practitioners on referral from known Falun Gong practitioners in Australia." (Emphasis by italics in original) 19 In the amended application to the Federal Magistrates Court a case of apprehended, not actual, bias was advanced. Though the Applicant uses the bare word "bias" in his draft notice of appeal, there is nothing in the evidence before the Federal Magistrates Court or in any other evidence relied on in the extension of time application which would provide any reasonable prospect of successfully impeaching the Tribunal's decision on the ground of actual bias. 20 Prior authority counsels that to overturn a decision even on the basis of apprehended bias is no light thing: Re Lusink; Ex Parte Shaw (1980) 55 ALJR 12, at 14B (Gibbs ACJ); s 140 (2) of the Evidence Act 1995. It is also salutary to remember that the (in this case) administrative officer in respect of whose decision such an allegation is made is not heard from when the merits of that allegation fall for hearing and determination. 21 The decision made by the Tribunal was administrative, not judicial, in character. The governing principle is not in doubt, nor was it below, as the reasons for judgment of the learned Federal Magistrate reveal. An authoritative statement of principle is to be found in the judgment of the Full Court of the High Court (Gleeson CJ, Gaudron and Gummow JJ) in Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982, at 983, [5]: It was held in Re Refugee Review Tribunal; Ex Parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover … regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. (Internal footnote references omitted). 22 And later in that same case: 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. 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: Re Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR at 990, [27] - [28] (Again, internal footnote references omitted) 23 The test then is one of objective possibility. 24 Applying that test to the circumstances of this case, I have reached the conclusion that the learned Federal Magistrate erred in dismissing the challenge to the Tribunal's decision. The explanation of that conclusion requires an analysis in some detail of the nature of the claim for a protection visa made by the Applicant, of how the Tribunal dealt with that claim and of the reasons for judgment below. 25 At the heart of the Applicant's visa claim was his asserted adherence to the tenets and practices of the Falun Gong movement, his consequential experiences in China since July 1999 when that movement became the focus of what he stated was a campaign by the public security authorities to eradicate it and an asserted, consequential fear of persecution in the event of his return to China. He related his experiences in his visa application and related supporting materials as well as in oral evidence before the Tribunal. 26 Two of these alleged experiences in particular should be noted. 27 The applicant stated that he received a beating at the hands of the police in May 2002 in which he was wounded in the head by a three legged bar stool thrown at him. A sequel to this, he stated, was his admission to a named People's Hospital where his wounds were sutured. 28 The other experience alleged by the applicant was his incarceration in "[a named] Reform Through Labour Camp" for a period of one year on and from his arrest in March 2003 while practising Falun Gong at home. 29 It is necessary to highlight these alleged experiences because, by the time the visa application refusal decision came to be reviewed by the Tribunal, the applicant's account of these experiences was supported by the Chinese language original and an accompanying English translation of a hospital report and of a "Labour Reform Relief Assessment Form". Each of these, prima facie, offered at least some corroboration of his account. 30 The Tribunal had before it generic country information from the Department of Foreign Affairs dated 5 June 2000 and 7 October 2004 the effect of which was that, as a general comment, the experience of the Australian Embassy in China was "any official document" (the 2000 advice) or "many official documents (especially identity documents)" (the 2004 advice) could either be bought or forged. 31 The Tribunal came to give no weight to the corroborating information in the original documents based on the time when they came to be produced, relative to the initial lodgement and determination of the visa application and on inferences which it drew from the documents themselves and from the Applicant's oral evidence concerning the documents and the events related in them at the hearing it conducted. 32 Albeit at the price of a considerable elongation of these reasons for judgment, but so as to give context to the conclusion which I have come to reach, it is necessary to set out the passage from the Tribunal's reasons wherein it records its findings and reasons in respect of the events described by the applicant and the original documents which he had stated related to those events. It is also necessary to set out certain excerpts from the transcript of the hearing before the Tribunal, which was exhibited to an affidavit of his solicitor which was filed and read in the Federal Magistrates Court proceedings. So as to preserve the Applicant's anonymity in these proceedings I have deleted not only his name but those of named associates and particular institutions from the reasons, hearing excerpts and documents which I reproduce in these reasons. 33 The following passage appears in the Tribunal's reasons under the general heading "Documents from China": On 5 January 2007, the applicant produced to the Tribunal documents to support his claims (the originals were produced at the hearing): a Chinese document titled 'Labour Reform Relief Assessment Form' by the 'Unit: Education Team' dated 4 March 2004; and a Chinese document titled "[Named City] People's Hospital Diagnosis' dated 13 May 2002, concerning an examination of the applicant on 13 May 2002. The Tribunal consulted sources which show that there is a high level of document fraud in China: any official document can be either bought or forged in China, and irregular or improper issue of documentation is widespread. While the Tribunal acknowledges as pointed out by the adviser that this information does not mean that all documents from China are fraudulent, this information viewed in conjunction with concerns outlined below, lead the Tribunal to conclude that the information in the documents is not genuine and gives no weight to the documents. At the hearing the applicant stated that in September 2006 he had asked his wife to send evidence of his persecution, his wife mailed him the documents and he had received the documents in October 2006. He stated he did not have the envelope they came in. When the Tribunal asked why he had not then provided the documents to the Department (the delegate's decision was only made on 6 November 2006) he merely stated because he had a representing lawyer. However, he did not state that his lawyer failed to provide the documents to the Department. The applicant apparently wanted to get the documents sent from China to support his application. His failure to then advise the Department about the documents, does not support his claim that he had received the documents in late October 2006. The documents were translated on 27 December 2006 and produced to the Tribunal on 5 January 2007. A statement after the hearing indicated he had to work to save up to pay for a translation and was able to do so in December. However, this did not explain why he did not advise the Department or Tribunal that he had documents which he had yet to get translated. The applicant's claimed lack of urgency in translating the documents casts doubt on his claim to have held them since late October 2006. The Tribunal concludes that the applicant did not hold the documents in October 2006 and that he concocted this claim. This casts doubts on his credibility. The Chinese document titled 'Labour Reform Relief Assessment Form' by the 'Unit: Education Team' dated 4 March 2004, contains inconsistent dates. It indicates the duration of reform was '1 year from 6 March 2003 to 6 March 2004'; and elsewhere indicates that he was given one year Labour Reform on 4 March 2003. The applicant could not explain the inconsistent dates. The inconsistent dates raise concerns about the information contained in the document and suggest that the information is not accurate. The Chinese document titled '[Named City] People's Hospital Diagnosis' dated 13 May 2002, concerning an examination of the applicant on 13 May 2002, only describes treatment of a head injury. The document does not provide a cause, and so does not show how the injury came about. The Tribunal does not accept that the Chinese document concerning medical treatment shows that he was injured in the way he described. Incident in May 2002 At the hearing the application described the incident in 2002 (his application indicated May and the medial document indicated treatment for a facial injury on 13 May 2002) and the aftermath. He described how a police van pulled up when he and 3 other practitioners were exercising next to a factory wall, the police saw that they were practising Falun Gong, and they were arrested and taken to the police station. He stated a policeman Sun Hong Jun hit him, which differed from the application where he indicated Li Hon Jun. The applicant's explanation for the discrepancy given at the hearing that he cannot remember as it was many years ago, or explanation provided after the hearing that he was quite nervous, is at odds with his earlier evidence at the hearing that he knew the policeman's name because he had known the policeman previously. The applicant explained that because he was injured with a head wound, the police dropped him off at a hospital for treatment, left him there, and contained his wife to collect him. As indicated above, the Chinese document titled '[Named City] People's Hospital Diagnosis' dated 13 May 2002, concerning an examination of the applicant on 13 May 2002, describes treatment of a head injury. The document does not provide a cause, and so does not show how the head injury came about. The Tribunal asked about the other practitioners with whom he had been exercising. The applicant's evidence concerning the other 3 Falun Gong practitioners changed during the hearing. At first he stated he did not know what happened to the other 3 Falun Gong practitioners; then that he did see them afterwards and they had bee beaten; and then that he had heard them being beaten and yelling; then that he had no spoken to them as they were scared; and then that he did not speak to them as he was at home injured for over a month. The applicant's changing evidence, together with other instances when he changed his evidence during the hearing, suggested that the applicant was fabricating claims and details as he gave evidence at the hearing. The applicant stated that he was told by one of the group that another, [Person A], could not be found, but he did not know whether [Person A] disappeared the night of the detainment and he had not asked. The applicant's apparent lack of interest in the disappearance raises doubts, as it is reasonable to consider that this event was of some significance to the applicant and that he would have had an interest in how the police had dealt with the people who had been exercising with him. Accordingly, the Tribunal asked further questions about this connection with his fellow practitioners. Earlier in the hearing the applicant explained that in China he sometimes practised the exercises outside with other people he knew; he must just a few practitioners who lived close to him, and he learnt the exercises before Falun Gong was banned as they did them together; otherwise he described no other involvement with the Falun Gong movement. At the hearing the Tribunal indicated he had earlier said he exercised with people who lived close to him, that night he was doing Falun Gong exercises and he knew the authorities were cracking down on Falun Gong, so was it the case that he knew and trusted the people he was exercising with and they lived close to him. The applicant's answer appeared evasive: he stated he felt that doing the exercises was beneficial to health. He then stated that the 3 practitioners were not well known to him, and did not live close to him. However, in light of his evidence that they were not well known to him and did not live nearby, the Tribunal considered he did not satisfactorily explain how the group arrangement came about. The applicant's change in evidence, together with other instances when he changed his evidence during the hearing, raises concerns that the applicant was fabricating claims and details as he gave evidence at the hearing. Whilst the applicant's subsequent evidence was that he did not know the other practitioners well having only exercised on 2 nights in this way, he nonetheless remembered the name of [Person A] over 4 years later and the Tribunal considers that in light of his description of the incident (being beaten and hearing the others yelling in another room) it is reasonable to consider that he would have had an interest in how the police had dealt with the people who had been exercising with him, and sought further details about [Person A] from the practitioner who had informed him. Incident in March 2003 The third incident related by the applicant was in March 2003 when he was detained, taken directly to a labour camp without trial, and spent 12 months in detention. Thereafter he was required to write weekly reports, which he sometimes did. At the hearing he stated he was arrested on 4 March 2003 and was detained for 2 days short of one year. The Tribunal queries why he remembered this and he stated he remembered this as when he was in detention he had counted the days. However, in response to the Tribunal's suggestion that this meant he was released on 2 March 2004 he had dissembled: he did not remember, he had done nothing wrong, his mind had gone numb. Later in the hearing he stated he had been released on 6 March 2004 (2 days after the date of the assessment form) which would suggest that he was detained for 2 days more than a year. The applicant's change in evidence, together with other instances when he changed his evidence during the hearing, raises concerns that the applicant was fabricating claims and details as he gave evidence at the hearing. The applicant indicated in the application he left the labour camp in April 2004. He subsequently indicated at the hearing he left in March 2004 and he produced a document which showed detention until March 2004. In a statement after the hearing he indicated he did not know why he wrote April 2004 in the application. His explanation did not satisfactorily explain the differing dates. The discrepancy, concerning a significant occurrence in his life, and in light of his evidence at the hearing that when in detention he was counting the days, together with other aspects of his evidence, casts doubt on his credibility. The application showed that the applicant's older daughter was born on 4 September 2004. At the hearing the applicant was adamant that he was the natural father and the baby was healthy. However, the applicant claimed to be in a Labour reform camp until 6 March 2004. The applicant stated that a nice warden/guard in the Labour reform camp (after the hearing he named the guard as "Cai") permitted a conjugal visit by his wife. The Tribunal considers this explanation is improbable and does not accept that the child was conceived whilst he was undergoing labour reform in a labour reform camp. The Tribunal considers that the birth of his daughter shows that he was no in a labour camp at the time he claims. The Tribunal concludes that the information in the Chinese document concerning a period of detention is not genuine and gives no weight to the document. The Tribunal finds that the applicant is not a credible witness. The Tribunal considers that the applicant changed evidence during the hearing and fabricated claims and evidence as the hearing proceeded. The Tribunal does not accept that any of the incidents occurred: that he was detained in May 2001 and paid a fine; was arrested in May 2002 and assaulted; was detained in March 2003 and underwent 12 months detention; or any of the details of those claims. In light of these findings and the earlier findings that his level of knowledge is not consistent with that of a genuine Falun Gong practitioner, and that the Tribunal does not accept that he has had any association with the Falun Gong movement in Australia, or has practised Falun Gong in Australia, the Tribunal rejects the applicant's claimed involvement in Falun Gong in China. The Tribunal does not accept the he has practised Falun Gong since 1999." 34 As translated from the original Chinese, the two documents read as follows: The Hospital Document [NAMED CITY] PEOPLE'S HOSPITAL DIAGNOSIS Patient undergoing Examination: [The Applicant] Sex: Male Age: [The applicant's then age] Outpatient Number: [blank] Inpatient Number: [blank] X-ray Number: [blank] Examination result of 13 May 2002 by this department is as follows: Examination: Two locations of injury above left eye: one about 3cm and one about 2cm, depth about 0.5cm. Diagnosis: Head Injury Treatment: appropriate outpatient treatment (8 stitches) [Signature of Treating Doctor] [round seal for Outpatient Diagnosis of the Hospital] Dated on 13 May 2002 Invalid without official seal. The Labour Reform Camp Document "Small Group Assessment: Suggested to be relieved from labour reform in due time. Sub Team Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Team Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Labour Reform Section Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Decision by Labour Reform Administration Bureau: Agreed to relieve him from labour reform. [Signature of person in Charge] [round seal of the Bureau] 4 March 2004 Note: [blank]" 35 In the course of the hearing it conducted, the Tribunal was given the following explanation by the Applicant's migration agent and solicitor, Miss Byers, in relation to the difficulties which attended the delay in the lodgement with the Department of the Applicant's protection visa application after his arrival in Australia. "MISS BYERS: Just when you were asking the client why did he wait twenty-six days before lodging the application, Mr … [a successful protection visa applicant] who also has an RRT decision if you want to look up about Mr … [a successful protection visa applicant] as a Falun Gong practitioner contacted my office before 16th August for Mr … [the Applicant] to see me. He attended my office on the 16th. TRIBUNAL MEMBER: This is Mr … [a successful protection visa applicant] or? MISS BYERS: Mr … [the Applicant]. Mr … [a successful, Falun Gong practitioner, protection visa applicant] rang because I only take Falun Gong practitioners on referral, I don't take on people who only just walk in off the street, so Mr … [a successful, Falun Gong practitioner, protection visa applicant] has been to the RRT, he was introduced to me by a reporter from the Epoch Times, so Mr … [a successful, Falun Gong practitioner, protection visa applicant] rang before 16th August to make an appointment for Mr … [the Applicant]. Mr … [the Applicant] attended my office on 16th August. The rest of the time was taken up getting translations done. I think you see the translations are dated 16th August, that's when we requested them. As to what he did in the first ten days, twelve days when he was in Australia I couldn't tell you, but he came to see me on the 16th. TRIBUNAL MEMBER: Thank you. MISS BYERS: It does take time. The forms take forever, especially I'm the only one in the office that actually reads Chinese though I do have Chinese speakers but they don't read and write Chinese, so I actually have to do the romanisation, opinion, and decipher the Chinese to complete the forms, so it takes me a day or two to do that." 36 The following exchange occurred between the Tribunal and the Applicant in the course of the hearing in relation to why the Applicant had desisted from attending Falun Gong exercises in a park in Australia: "TRIBUNAL MEMBER: How often do you do the exercise in that park? APPLICANT: I went a few times then there was someone on the side taking photos. They said they're spies so I wouldn't dare to go any more. TRIBUNAL MEMBER: I did laugh, it's not actually amusing. How did they say to you that they were a spy? APPLICANT: Some passer-by said that. And also when I telephoned home my wife said the PSB is still going to my home to investigate. TRIBUNAL MEMBER: So your evidence was, is it, that your photo was taken by someone in that park and a passer-by said that is a spy? APPLICANT: No, I was doing exercise there then I saw someone taking photo towards the practitioners. TRIBUNAL MEMBER: And how did you come to the conclusion that this was a spy? APPLICANT: Then at work I told someone what happened, they said stop going. TRIBUNAL MEMBER: Did the person who took the photo say anything to you? APPLICANT: No. TRIBUNAL MEMBER: How often have you been to this park? You've said a few times. How often is a few times? APPLICANT: Roughly about six or seven times." 37 It is apparent on the face of the Applicant's protection visa application that, via the medium of her migration agency company, Miss Byers had the personal carriage of the Applicant's protection visa application on and from the time of its preparation and lodgement with the Department. 38 Evidence was also given to the Tribunal in the course of the hearing by the Applicant as to the procuring for him of his passport by family and friends. Having considered this account and differences between it and that in the protection visa application in relation to the issuing of the passport, the Tribunal concluded that the evidence which he gave at the hearing as to when and how the passport was issued was concocted. 39 As to the Applicant's membership of the Falun Gong movement, the Tribunal recited that, at the hearing, it found that the Applicant: · had "a superficial and scant knowledge of Falun Gong"; · "had learned a few basic facts about the movement when the Chinese authorities started cracking down on Falun Gong; the name of the Falun Gong founder and text, the names of the exercises, and the precept of 'truthfulness, benevolence, forbearance'"; · "[Conversely] … had no apparent knowledge or understanding of the philosophy of Falun Gong and no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners, beyond claiming that he found performing the 5 exercises were beneficial to his health". 40 In the summary which the Tribunal offered at the end of its reasons the following statement appears, "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia. The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner, protection visa applicant] shows that he is a Falun Gong practitioner". The Tribunal expressly rejected the Applicant's claim that he had practised Falun Gong in China since 1999, that he had been detained and assaulted by police and paid a fine and undergone 12 months detention in a labour reform camp. 41 There is nothing in the Tribunal's reasons which would indicate that the Tribunal had third party information before it as to: (a) whether the particular People's Hospital or the particular Reform Through Labour Camp existed at all in, respectively, 2002 and 2003/2004; (b) whether conjugal visits were possible, either formally or informally, in either the particular Reform Through Labour Camp or at least that class of camp; (c) whether the very documents produced by the applicant or even that class of document were or were very likely to be a forgery; (d) more generally, the practices and procedures of each of the institutions from which the documents produced by the applicant purportedly originated, which might have assisted in forming a view as to their likely authenticity; (e) the level of knowledge of the Falun Gong movement that one might expect of an ordinary adherent of limited formal education. 42 The learned Federal Magistrate conducted a methodical analysis of each of the findings of the Tribunal set out in the judicial review application. His Honour reached the conclusion that each of these findings was reasonably open to the Tribunal and demonstrated a logical and rational approach to the issues raised for consideration before the Tribunal. Seemingly (reasons for judgment, [73]), there was a concession before the Federal Magistrate's Court that, individually, each of the particularised findings in the judicial review application might not give rise to an apprehension of bias. This concession, His Honour thought, revealed the flaw in the Applicant's case, remarking, "As bias could not be demonstrated in relation to discrete matters which were particularised, then the combination could not amount to bias either" (reasons for judgment, [73]). 43 In his submissions as to the merits of the appeal the Minister essentially adopted the reasoning of the Federal Magistrate. Like his Honour, the Minister opined that, in reality, the judicial review application was a solicitation impermissibly to conduct a review on the merits of the application for a protection visa application. 44 That it is no part of the jurisdiction consigned to the Federal Magistrates Court to reach its own conclusion with regard to the merits of the applicant's protection visa application is unquestionably correct. A fortori that is so in this Court on appeal. It is axiomatic that the limits of the role consigned to a court conducting the judicial review of an administrative decision must firmly be kept in mind and respected in a principled way. The definitive, contemporary, Australian exposition in this regard is that offered by Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1, at 35-36. "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 45 Yet the solicitation made in the Applicant's judicial review application was not for the court to reach any conclusion at all on the merits of his protection visa application. Rather, it was objectively to examine in their totality the findings which the Tribunal had made in reaching its conclusion and the reasons for those findings in light of the material before the Tribunal, including the way in which those reasons were expressed. Viewed in this context, collectively and cumulatively, not individually, what this was said to reveal was a tendency or predisposition towards a particular result, an objective possibility of bias. This is the end to which paragraph "a" of the particulars given under ground 1 of the judicial review application is directed. 46 There is no necessary antipathy between the advancing of such an apprehended bias case and a concession that, viewed in isolation, one of many findings of an administrative tribunal might reasonably have been made. 47 Given the role consigned to the Tribunal by the Migration Act 1958 and the nature of the case of apprehended bias that the applicant sought to make, the following passage from the judgment of Allsop J (as his Honour then was), Moore and Tamberlin JJ agreeing, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 is, subject to one necessary qualification arising from the particulars of challenge in the present case, apposite: "17 To identify the obligation of the Tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality." (Internal footnotes omitted). 48 The one necessary qualification is this. It was submitted by counsel who appeared on behalf of the Minister, who did not appear in the proceedings below, that the Applicant's apprehended bias case as advanced before the Federal Magistrates Court was not directed to the manner in which the Tribunal had conducted the hearing it afforded the applicant. The way in which the apprehended bias case is particularised in the judicial review application supports such a submission. That impression is reinforced by regard to the Federal Magistrate's reasons for judgment. It is apparent from these that, though particular passages from the Tribunal hearing were highlighted in course of oral submissions for the applicant, that was to the end of giving context to a case that, objectively, the Tribunal's findings and reasons gave rise to the possibility of bias in the decision to confirm the refusal of his protection visa application. Thus the complaint here is with what is said to be an objective possibility of bias arising from the way in which the Tribunal has dealt with the material before it, not with or not in addition to the conduct of the Tribunal at the hearing. 49 An apprehended bias case has, as Hayne J noted in Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 564, [185], "several distinct elements at its roots": "First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case." In an apprehended bias case a conclusion that it is objectively possible that these elements are present is sufficient to establish a want of procedural fairness grounded in an apprehension that the decision maker was biased. That conclusion does not carry with it the additional conclusion that the decision-maker was in fact biased. It is whether there is such an objectively discernable possibility, not the thought processes of the decision-maker, which must be the focus of inquiry. 50 There is an inherent tension between a finding on the one hand that "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia," (emphasis added) and, on the other that "The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner, protection visa applicant] shows that he is a Falun Gong practitioner" (emphasis added). 51 The Tribunal had before it direct evidence from Miss Byers, which it did not find unworthy of credit, to the effect that: (a) the applicant had come to her on referral from a known Falun Gong practitioner; (b) the referrer had successfully satisfied the Tribunal (differently constituted) that he was indeed a Falun Gong practitioner; (c) in Falun Gong claimant related cases, she only acted for those referred by a Falun Gong practitioner, not those who came "directly off the street". 52 It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488, 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth". 53 Recalling, at the level of objective possibility, the three elements described by Hayne J in Jia Legeng at 564, what emerges, in my opinion, is the possibility that the Tribunal had a pre-conceived view that the applicant was not a person who feared persecution on the basis of adherence to the practice of Falun Gong, applied that preconception to the question of whether the applicant satisfied the criteria for the grant of a protection visa and did so notwithstanding that there was evidence, at least worthy, prima facie, of credit, that the applicant not only was, not "apparently was", associated with an Australian resident Falun Gong practitioner but had been referred by that person to a solicitor and migration agent whose integrity the Tribunal had no reason to doubt, and who professed to take "Falun Gong" cases only on referral from known Falun Gong practitioners, for the purpose of seeking from Australia the very same refuge from a claimed fear of persecution as the Tribunal itself had regarded as well founded in the case of that referrer. 54 That objective possibility is not removed by regard to the way in which the Tribunal dealt with: (a) the Applicant's knowledge of the Falun Gong movement; (b) the reason advanced by the Applicant for desisting from practising Falun Gong exercises in a park in Australia; (c) the Hospital Document; (d) the Labour Reform Camp Document. 55 The Tribunal was faced with a man of rudimentary education who it found knew the basic tenets of Falun Gong, its founder, its principal text and its five exercises, who claimed benefit from their practice, who claimed to have been prevented by official persecution from readily associating in China with fellow adherents but did so at an asserted price of beating and imprisonment and who it found was unable to engage in a detailed philosophical discussion about the movement. 56 A disquiet best illustrated by analogy emerges. There must be many professed Christians who know little more than that the principal prophet of the Christian faith is Jesus who claimed to be the son of God, born of a virgin, Mary, that its Holy Book is the Bible (even though they rarely, if ever, read it), that central tenets of the faith are that a Christian must love others just as Jesus had loved them meaning that he must do unto his neighbour as he would have the neighbour do unto him, that Jesus had been crucified dead and buried for teaching this but rose from the dead in proof of the eternal truth of his claim and teaching and who gain comfort from adhering to these central tenets and mixing with like minded people but who are unable to engage in theological debate. If such a person claims to have a fear of persecution because of an asserted Christianity is he to be dismissed as an unbeliever? It is no part of the price of engendering "satisfaction" that an applicant has a well founded fear of persecution on the basis of religious belief that he or she would pass an examination in divinity studies. 57 Disquieting though the Tribunal's conception of what is necessary to evidence a religious belief may be, the conclusion which was reached in relation to this applicant's knowledge of Falun Gong may not, viewed in isolation and in the sense described by Gibbs J (as he then was) in Buck v Bavone (1976) 135 CLR 110 at 118-119, be so unreasonable that no reasonable tribunal could have so concluded. Viewed against the broader context of the way in which the Tribunal has dealt with other issues, the deference that would ordinarily be conceded on judicial review to such a conclusion is challenged by a distinct, objective possibility of a belief on the part of the Tribunal that someone could not be a Falun Gong practitioner without an ability, irrespective of educational attainment, to engage in philosophical discourse about the movement, that this belief was brought to the determination of the application and that it was applied without giving consideration to the nature of the applicant, the knowledge of the movement and, particularly, an association with an Australian resident Falun Gong practitioner that he in fact had. 58 Any assessment of the impact, in terms of an apprehended bias challenge, of the Tribunal's treatment of the Hospital Document and the Labour Reform Camp Document must be guided by the cautionary note sounded by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 at 1174, [49]. "[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant." (Emphasis added) 59 On one view of matters, that is all that the Tribunal has done here. It is possible to discern differences of detail in respect of an event or experience both within the applicant's evidence at the Tribunal hearing and as between that evidence and that given in other material submitted either with the initial protection visa application or later. Such differences certainly could provide a basis for a finding about the applicant's credibility and an affording of no weight to seemingly corroborative documents. In relation to the apprehended bias challenge, the factors are certainly not all one way. 60 Yet the Tribunal's findings concerning the credibility of the applicant's account have themselves been influenced by comparison with inferences that the Tribunal drew from an inspection of the Hospital Document and the Labour Reform Camp Document. This interplay in my opinion distinguishes the present case from the position described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 in the passage quoted above. 61 The Tribunal rightly acknowledged, explicitly, that the general information that it had from the Australian Embassy concerning document fraud in China did not mean that all documents from that country were fraudulent. Possession of such information reasonably puts any administrator on guard, but nothing more than that, in relation to particular documents. 62 The Tribunal's perception of the genuineness of the applicant's account of his beating at the hands of the police, as well as of the Hospital Document itself, was expressed to be influenced by the fact that this document did not state a cause for the injury. That is true, but the Tribunal had no material before it as to whether it was the usual practice in this or any such Chinese hospital to record a cause, especially when this would record an injury inflicted on a citizen at the hands of State officials. 63 The Tribunal made much in terms of its credibility findings of the applicant of a difference between the release dates he gave in evidence and the date on the Labour Reform Camp Document. In the course of his oral evidence the applicant had at one stage mentioned 6 March 2004 whereas the Labour Reform Camp Document bears 4 March 2004 dates. 64 A study of that document though discloses that it is not, in terms, a release order but instead appears to be a release submission which passed favourably through a number of departments within the camp on 4 March 2004 as a precursor to release. Again, there was no evidence before the Tribunal which would support any different characterisation of the document. The dates on the document did not provide a reasonable basis for disbelieving the Applicant's account of his incarceration. 65 The September 2004 birth date of one of the Applicant's children and his claim to have been in detention in the labour reform camp until 6 March, or perhaps April, 2004 not unreasonably gave the Tribunal pause for thought about whether his account of being incarcerated should be regarded as credible. However, as I have mentioned, the Tribunal had no evidence concerning the practices and procedures of such camps and whether conjugal visits were possible even if not officially sanctioned. 66 In respect of the credibility findings based on the September birth date and the hospital recording of assault by police as an injury cause, there exists the possibility that the Tribunal has acted on the unarticulated premise of an understanding of Australian, not Chinese, experience, practice and procedure. So to do would not be reasonable. The other possibility, objectively raised, is that bias underpinned those credibility findings. 67 The conclusion reached by the Tribunal as to the Applicant's credibility based on his evidence as to how his passport was obtained does not, in isolation, strike me as unreasonable. The same may be said, again viewing it in isolation, of the conclusion reached by the Tribunal as to the credibility it should afford the Applicant's account of why he desisted with Falun Gong exercising in a park. Equally though, it is by no means impossible, if one accepts the Applicant's account of arbitrary street arrest, beating and incarceration, to accept that a stranger to Australia and its freedoms who had had such experiences abroad might be highly apprehensive about being photographed undertaking his exercises by strangers whom he believed to be foreign agents but other views were reasonably open. 68 The difficulty is that the possibility exists that each of these conclusions was itself influenced by other credibility conclusions which, for reasons which I have endeavoured to detail above, it is objectively possible to regard as giving rise to an apprehension of bias. In such circumstances, it seems to me that the ultimate absence of satisfaction on the part of the Tribunal with regard to the basis of the Applicant's claim for a protection visa must be regarded as tainted by an apprehension of bias. In my opinion, in relation to a visa application the success of which centred on the engendering of a state of administrative satisfaction and in circumstances where, objectively, particular findings can be seen possibly to be tainted by an apprehension of bias other credibility findings which might themselves necessarily be conceded to be reasonably open, even if other views were open, must likewise be regarded as possibly tainted. The objective possibility of all seeming jaundiced to the jaundiced eye is presented. The same possibility exists in these circumstances in relation to the conclusion that the Tribunal came to reach about whether the Applicant was a genuine Falun Gong practitioner.