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[2010] FCA 182
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent’s costs fixed at $2,400.00.
The appellant’s account was rejected by the Tribunal, and the Federal Court did not re-decide whether that account was true. It examined whether the Tribunal or the Federal Magistrates Court had made a reviewable legal error. Yates J found no support for bias, considered that the country information was covered by a disclosure exception and had in any event been discussed with the appellant, and found that he had been given opportunities to present his case. The appeal was dismissed, with $2,400 in costs ordered against the appellant.
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2,453 words · generated 28/09/2026
SZNUX v Minister for Immigration and Citizenship [2010] FCA 182 is an appeal from the Federal Magistrates Court’s dismissal of an application for judicial review of a Refugee Review Tribunal decision. Yates J delivered judgment on 8 March 2010. The Tribunal had affirmed the delegate’s refusal of SZNUX’s Protection (Class XA) visa application ([1]-[2]).
1 cited instrument linked from this judgment.
SZNUX was a citizen of China who arrived in Australia on 29 November 2008. In his visa application, lodged on 30 December 2008, he said he had worked from 1980 to 2008 at a state-owned restaurant in Kaifeng City, Henan Province. According to his account, the restaurant was contracted to a private operator in June 2008, who brought in different employees. About 60 former workers, including SZNUX, allegedly lost their jobs without compensation ([2]-[3]).
SZNUX said former employees made repeated complaints to government leaders and later gathered at a city government building to seek compensation and re-employment. He claimed that he and two other workers were accused of causing trouble, detained, tortured and interrogated, and released after about 10 days after making admissions and being warned not to cause further trouble. He also said he later took revenge on individual leaders and was pursued by Chinese authorities. His account of relocating within China was made at interview, rather than in his original application ([4]).
The Tribunal did not accept the main factual claims. It considered the evidence vague and inconsistent, and did not accept that SZNUX had been dismissed in the claimed circumstances, had participated in the claimed action, had been detained or mistreated, had taken revenge, had gone into hiding, or was wanted by Chinese authorities ([5]). It did accept that he was unemployed or may have been unemployed before leaving China, and that he was concerned about his employment prospects and his family’s circumstances. It did not connect those concerns to a basis for refugee status ([6]).
The Federal Magistrates Court rejected the judicial-review grounds alleging bias and failures under ss 91R and 424A of the Migration Act 1958 (Cth). It also found that the Tribunal had given SZNUX an opportunity to present his case as required by s 425 ([7]-[12]). On appeal, SZNUX continued to assert that he had been persecuted and that the Tribunal’s country information was inaccurate. Yates J treated those submissions as an invitation to revisit the Tribunal’s factual findings, not as identification of error in the Federal Magistrates Court’s decision ([14]-[16]).
Yates J dismissed the appeal. The order required SZNUX to pay the Minister’s costs, fixed at $2,400 under O 62 r 40C(4) of the Federal Court Rules ([22]-[25]).
The central distinction in the reasons is between challenging a decision’s legal validity and asking a court to reassess its merits. SZNUX’s appeal grounds repeated his account of events in China. Yates J explained that reconsideration of the Tribunal’s factual conclusions was not available in judicial-review proceedings or on appeal, referring to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 ([14]). The appellant’s oral submissions similarly challenged the Tribunal’s view of the facts and the accuracy of country information, without identifying an appealable error by the Federal Magistrates Court ([16]).
That distinction framed the consideration of each ground. On bias, Yates J held that the Tribunal’s rejection of SZNUX’s claims did not establish that it was biased. The Court found no other material that established or suggested actual bias, and nothing that could sustain apprehended bias ([18]). The outcome therefore turned not on whether the factual assessment was correct, but on whether there was material showing the decision-maker was improperly predisposed. The judgment found none.
On s 91R, the Court accepted the Federal Magistrates Court’s reasoning that the Tribunal had rejected the factual foundation of the protection claim. In those circumstances, it was unnecessary for the Tribunal to decide whether the alleged events, if accepted, would satisfy s 91R ([19]). The reasons do not decide whether the claimed conduct would have met s 91R had it been established. That question remained hypothetical because the Tribunal did not accept that the events occurred.
The s 424A argument concerned independent country information about restaurant ownership and contracting in Kaifeng, state-owned enterprise workers, and complaint and labour-dispute processes in China. Yates J concluded that this information fell within the exception in s 424A(3)(a), and so did not have to be disclosed under s 424A ([20]). The Court also relied on what had happened at the Tribunal stage: on 1 July 2009, the Tribunal discussed the information with SZNUX, heard where he disagreed with it, told him it might be a reason for affirming the decision, and informed him he could request a further opportunity to comment. The record did not indicate that he made such a request ([20]).
The s 425 ground failed on the hearing record. SZNUX was invited to, and did, attend two Tribunal hearings, lasting more than four hours altogether. His claims were discussed in detail, and he had an opportunity to give evidence and present arguments on the issues arising in the review ([21]). Yates J found no indication that the Tribunal failed to comply with s 425.
Taken together, the grounds did not demonstrate jurisdictional error by the Tribunal or error by the Federal Magistrates Court. Yates J therefore dismissed the appeal ([17], [22]). The costs order followed separately: the Court accepted the Minister’s $2,400 claim as a fair estimate of party-party costs and found that SZNUX’s stated financial hardship did not justify a different amount ([23]-[25]).
The judgment does not purport to announce a comprehensive change in migration law. It applies provisions of the Migration Act and authorities cited in the reasons to the particular grounds raised. Its most explicit statement about the limits of review is the reliance on Wu Shan Liang for the proposition that a judicial-review proceeding or appeal is not an opportunity to reconsider the merits of the Tribunal’s decision ([14]).
For the bias issue, Yates J’s reasoning is case-specific: disbelief of a person’s account, without other material, did not establish bias in this matter ([18]). The reasons do not formulate a new general test for actual or apprehended bias. The Federal Magistrates Court had discussed Minister for Immigration and Multicultural Affairs v Jia Legeng and Refugee Review Tribunal; Ex parte H, but Yates J’s own resolution at [18] rests on the absence of material supporting bias.
For s 91R, the judgment applies a sequencing point: once the Tribunal rejected the facts said to underpin the protection claim, it was not necessary to decide whether those facts, if true, would meet the statutory requirements ([19]). It does not explain or restate the content of s 91R, nor does it determine how the provision would apply to the alleged events on an accepted factual basis.
For s 424A, the Court applied the statutory exception in s 424A(3)(a) to the categories of country information described at [20]. It also recorded that the Tribunal had put the information to SZNUX and had explained the opportunity to request further comment. The judgment cites Minister for Immigration and Multicultural and Indigenous Affairs v NAMW, VHAP of 2002 and QAAC of 2004 in connection with the exception ([20]). It does not set out those cases’ full reasoning, so the decision should not be read as supplying a wider account of their principles.
For s 425, the Court applied the opportunity to give evidence and present arguments to the hearing history recorded in the Tribunal’s decision ([21]). It did not need to decide a broader question about the requirements of a Tribunal hearing because it found the recorded opportunities sufficient to reject this appellant’s complaint.
Thus, on the material supplied, the “before and after” account is one of application rather than demonstrable doctrinal change. The judgment records how these provisions and authorities were applied to the facts before Yates J. It does not provide later amendments, subsequent interpretations, or a general statement about the present state of Australian migration law.
At [14], Yates J stated that “a reconsideration of the merits of the Tribunal’s decision is not available in proceedings for judicial review of that decision or in this appeal.” In plain English, the Federal Court was not deciding afresh whether SZNUX’s story was true. The question was whether the Tribunal or Federal Magistrates Court had made a legal error that could be corrected through the appeal.
At [18], the Court stated that the Tribunal’s failure to accept many of SZNUX’s claims “does not establish the existence of bias.” The practical meaning in this case is that an unfavourable credibility assessment was not, by itself, proof that the Tribunal had prejudged the case. Yates J also found no other material supporting actual or apprehended bias.
At [19], the Court said that, because the Tribunal rejected the factual claims, it did not need to decide whether the alleged events would have established the elements of s 91R if they had been accepted. In plain English, the Court did not rule on whether the alleged detention and mistreatment would have met that provision. The Tribunal’s factual findings meant the legal question did not arise for decision.
At [20], Yates J concluded that the specified country information fell within s 424A(3)(a), so it was not required to be disclosed under s 424A. The same paragraph records that the Tribunal discussed the material, heard SZNUX’s disagreement, warned that it might be a reason for affirming the refusal, and told him he could request further opportunity to comment. The translation is that the Court relied both on the statutory exception and on the record of the Tribunal’s communication with SZNUX.
At [21], Yates J noted two hearings lasting more than four hours in total, detailed discussion of the claims, and an opportunity to give evidence and make arguments. The Court concluded that the record did not show a breach of s 425. This was a conclusion about the hearing process recorded in this matter, rather than a claim that hearing length alone determines compliance in every case.
The judgment is most directly relevant to a case where an applicant’s proposed appeal repeats disputed factual claims but does not identify an error in the lower court’s judicial-review analysis. At [14]-[16], the Court distinguished a merits disagreement from an appealable error. That distinction is especially important where the grounds of appeal mainly restate the applicant’s version of events or challenge the decision-maker’s assessment of evidence.
It also addresses a bias allegation based principally on the fact that the Tribunal did not believe the applicant. The case indicates that, on its facts, non-acceptance of claims was not enough: the Court looked for other material capable of establishing or suggesting bias and found none ([18]). The decision does not determine how a different record, containing additional material relevant to impartiality, would be assessed.
The s 91R reasoning is relevant where the Tribunal rejects the factual events said to establish a protection claim. In SZNUX, the rejection meant the Tribunal did not have to consider the hypothetical statutory characterisation of those events ([19]). The case does not answer the s 91R question where the relevant facts are accepted.
For s 424A, the judgment concerns independent country information of the kinds identified at [20], together with the record that the Tribunal discussed the information and explained the opportunity for further comment. It should not be treated as deciding that every item of country information falls within the same exception. The Court’s conclusion concerned the information and procedure described in this judgment.
For s 425, the relevant pattern is a complaint that the applicant could not explain the case, alongside a record of Tribunal hearings where the claims were discussed and evidence and arguments could be presented. The Court found that record inconsistent with the claimed failure in this instance ([21]).
The supplied judgment contains no information about later judicial treatment of SZNUX. It does not identify any later court that followed, distinguished, applied, criticised, or reconsidered its reasoning. No conclusion about the decision’s subsequent status or influence can therefore be drawn from this source alone.
The cases expressly cited in Yates J’s own reasons are Wu Shan Liang at [14], and NAMW, VHAP of 2002 and QAAC of 2004 at [20]. The reasons cite Wu Shan Liang in support of the proposition that merits reconsideration is not available in judicial review or on appeal. The three migration cases at [20] are cited in connection with the s 424A(3)(a) exception. Those are authorities relied on in SZNUX, not evidence of later treatment of SZNUX itself.
The judgment also recounts authorities considered by the Federal Magistrates Court, including Jia Legeng, Ex parte H and SZBYR ([8], [10]). Those references explain the lower court’s analysis as recorded in the appeal reasons. They do not provide evidence about how later courts treated SZNUX.
The reasons leave several matters undecided because they were unnecessary to the result. First, the Court did not decide whether the alleged detention, torture, interrogation, or other claimed events, if accepted, would have satisfied s 91R. It expressly treated that as unnecessary after the Tribunal rejected the factual account ([19]).
Second, the judgment does not decide how a bias allegation would fare if there were material beyond an adverse credibility finding. Yates J found no such material in this case ([18]). The reasons therefore resolve the allegation on the evidence before the Court, not every possible factual basis for an actual or apprehended bias claim.
Third, the s 424A ruling concerns specified country information and the Tribunal’s recorded handling of it. The reasons do not provide an exhaustive description of what kinds of information fall within s 424A(3)(a), or decide a case where information was not discussed at a hearing or where the applicant requested further time to comment ([20]).
Fourth, the s 425 conclusion depends on the record that SZNUX attended two hearings, that his claims were discussed in detail, and that he could give evidence and present arguments ([21]). The judgment does not resolve what the outcome would be on a different hearing record.
Finally, the decision supplies no account of later legislative changes or subsequent court treatment. Its conclusions should therefore be understood as the reasoning in this 2010 appeal, grounded in the statutory provisions, authorities, and facts stated in the judgment.
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REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia delivered on 18 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 July 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.
Background 2 The appellant is a citizen of China who arrived in Australia on 29 November 2008. On 30 December 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 23 March 2009. On 16 April 2009 the appellant applied to the Tribunal for a review of that decision. 3 In his application for a protection visa, the appellant said that from 1980 to 2008 he had worked in a particular state-owned restaurant at Kaifeng City in Henan Province that was suddenly contracted to a private operator in June 2008. The operator brought in his own employees and, as a result, some 60 former restaurant employees including the appellant became unemployed and did not receive compensation. 4 He said that in June and July 2008 the former employees approached government leaders to lodge their grievances on many occasions, but their complaints were ignored. He said that in August 2008 they gathered at a city government building to request compensation and to demand re-employment, but that, instead of their grievances being redressed, the appellant and two others were accused of being troublemakers. He said that they were detained and sent to a detention centre where they were tortured and interrogated and forced to make admissions. He said that they were released after some 10 days, having admitted that they were troublemakers, and having been warned not to make any further trouble. After his release he said that he "revenged certain individual leaders" and, for that reason, he was being chased by the Chinese authorities. On interview (but not in his original application) he said that, because of this, he relocated from Kaifeng City to the homes of friends and relatives in Zhengzhou City in the same province, and then to Jiangsu Province. He said that "with no other choice left", he decided to come to Australia to seek asylum.
The Tribunal's Decision 5 The Tribunal considered that the appellant's claims lacked credibility and were inconsistent in several respects. It found that he was vague when giving oral evidence and unable to provide significant details in response to questions. The Tribunal did not accept that the appellant had given a truthful account of his experiences in China; or that he was dismissed in the circumstances claimed and not given compensation; or that he and others undertook action as claimed; or that he and two other workers were detained or subjected to mistreatment. Furthermore, the Tribunal did not accept that the appellant sought revenge on any leaders; or that he went into hiding; or that he was wanted by the PSB or any other authorities in China; or that he would be gaoled or otherwise subjected to adverse attention or treatment on return to China. 6 The Tribunal did accept that the appellant was unemployed and may have been unemployed prior to his departure from China. It accepted that he was concerned about his employment prospects on return to China, particularly given his age, and also about the possible effects that his unemployment would have on his family. However, whilst it considered such problems to be unfortunate, it did not accept that they were in any way related to the claims he had made for refugee status. The Tribunal found that the appellant did not have a well-founded fear of persecution now or in the reasonably foreseeable future. The Tribunal affirmed the decision of the delegate.
Federal Magistrates Court 7 By application filed in the Federal Magistrates Court on 4 August 2009, the appellant sought judicial review of the Tribunal's decision. In that application, the grounds of review were framed as follows: 1. Refugee Review Tribunal had bias against me and failed to consider my application according to S91R of the Migration Act 1958. 2. The Refugee Review Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision of the DIAC. I was not given an opportunity to explain my case. [Errors in original] 8 In relation to ground 1, the Federal Magistrates Court found that neither actual nor apprehended bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 had been made out. There was nothing in the material before the court to indicate that the Tribunal had a closed mind; nor was the decision such as to indicate, from the perspective of the appropriately informed fair-minded lay observer, an apprehension of bias or a closed mind. The Federal Magistrates Court noted that the Tribunal's reasoning indicated that, in some respects, it had given the benefit of the doubt to the appellant. 9 The Federal Magistrates Court similarly found that there was no substance in the appellant's contention that the Tribunal failed to consider his application according to s 91R of the Migration Act 1958 (Cth) (the Act). The Federal Magistrates Court considered that, as the Tribunal had rejected the factual basis of the appellant's claims, it was not necessary for it to go on to consider whether, had it accepted that these events had occurred, they would have constituted "serious harm" within s 91R of the Act. 10 In relation to ground 2, the Federal Magistrates Court found that there was nothing in the material before the Court to indicate that the Tribunal had failed to comply with s 424A of the Act by failing to put to the appellant for comment "information" in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 that was not within any of the exceptions in s 424A(3) of the Act. 11 More generally, the Federal Magistrates Court found that the Tribunal raised with the appellant the particular difficulties it had with his claims, and that the appellant was given the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425 of the Act. 12 Having found no jurisdictional error in the Tribunal decision, the Federal Magistrates Court dismissed the application, with costs.
Appeal To This Court 13 On 7 December 2009 the appellant filed a notice of appeal in this Court. The grounds of appeal were framed as follows: 1. For life, I had to go to the Local government to request the compensation for our loss of job, which caused my being detained and sent to Kafeng Detention Centre. I suffered brutal torture and interrogation. During the days of police custody, I suffered mistreatment both physically and mentally. After my release, I revenged certain leaders so I was chased. With no choice left, I had to come to Australia to seek asylum. The Refugee Review Tribunal had bias against me and failed to consider my application according to S 91R of the Migration Act 1958. 2. The Federal Magistrates Court Judge didn't point out The Refugee Review Tribunal's jurisdictional error while it decided my application for protection visa. [Errors in original] 14 The first five sentences of ground 1 relate to factual matters that were the subject of findings by the Tribunal. It is plain that a reconsideration of the merits of the Tribunal's decision is not available in proceedings for judicial review of that decision or in this appeal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The balance of ground 1 mirrors the first ground of review in the appellant's application in the Federal Magistrates Court. It points to no error in the decision of the Federal Magistrates Court. Read literally, ground 2 of the notice of appeal simply states a factual matter and does not identify an appealable error. 15 I have treated grounds 1 and 2 of the notice of appeal as alleging, in substance, that the Federal Magistrates Court erred in the findings and conclusions to which it came with respect to each of the grounds raised in the appellant's application filed in that court. No objection was taken by the Minister to my reading and treating grounds 1 and 2 in this way. 16 The appellant appeared in person with the assistance of an interpreter and made oral submissions. The substance of those submissions was that the Tribunal's decision was wrong because, as a matter of fact, he was persecuted in China and that, concomitantly, neither the Tribunal nor the Federal Magistrates Court considered his case very seriously. In a similar vein, he said that he was of the view that the independent country information used by the Tribunal was not accurate. These submissions were really an invitation to review the factual findings which the Tribunal had made. No submissions were directed to the existence of any appealable error in the findings or conclusions of the Federal Magistrates Court in undertaking judicial review of the Tribunal's decision. In these circumstances I have reviewed those findings and conclusions with a view to seeing whether they are attended by error. I have been assisted in this task by the written and oral submissions made on behalf of the Minister. 17 The gravamen of the Minister's submissions was that no jurisdictional error in the Tribunal's decision and procedures, and no error in the decision of the Federal Magistrates Court, have been demonstrated. I agree. 18 Specifically, there is no substance in the allegation that the Tribunal was biased against the appellant. The Federal Magistrates Court was correct to reject that allegation. The fact that the Tribunal did not accept the truthfulness of many of the appellant's claims about what occurred to him in China, or was not otherwise prepared to accept the accuracy of his claims, does not establish the existence of bias. There is no other material that would establish, or indeed even suggest, bias on the part of the Tribunal. For completeness I should add that there is nothing in the material that I have seen that would sustain a claim of apprehended bias. 19 The allegation that the Tribunal failed to consider the appellant's application according to s 91R of the Act is also without substance. As the Federal Magistrates Court correctly pointed out, because the Tribunal had rejected the appellant's factual claims, it was not necessary for the Tribunal to go on to consider whether, had it accepted that the claimed events had occurred, they would have established the requisite elements of s 91R of the Act. 20 The Federal Magistrates Court concluded that the Tribunal did not fail to comply with s 424A of the Act. In my view that conclusion was correct. Specifically, the independent country information consulted by the Tribunal about whether restaurants in Kaifeng City were government-owned up to 2008 and whether they were privately contracted out in 2008, and also about workers in state-owned enterprises (including restaurants) and the processes for workers lodging complaints and grievances in China, and resolving labour disputes, both prior to and after 2008, was not required to be disclosed under s 424A of the Act because this information fell within the exception in s 424A(3)(a) of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. But, in any event, the record of the Tribunal's decision shows that, on 1 July 2009, the Tribunal discussed the independent country information with the appellant, who indicated where and in what ways he disagreed with that information. The Tribunal informed the appellant that the information may be a reason for affirming the decision under review and that he was entitled to request a further opportunity to comment on the information that was put to him: see ss 424A(2A) and 424AA. There is nothing to suggest that the appellant made any such request. 21 In relation to his claim that he was not given an opportunity to explain his case, the record of the Tribunal's decision shows that the appellant was invited to attend and did attend two hearings before the Tribunal, which lasted in excess of four hours, during which the appellant's claims were discussed in detail. He was given an opportunity to give evidence and to present arguments relating to the issues arising in relation to the decision under review. There is nothing in the record of the Tribunal's decision that would indicate that it failed to comply with s 425 of the Act in any respect. The Federal Magistrates Court correctly concluded that the ground based on a failure to comply with s 425 of the Act had not been made out. I should add that a reading of the record of the Tribunal's decision shows that the Tribunal gave thorough consideration to the appellant's application. 22 No error has been demonstrated in the findings or conclusions of the Federal Magistrates Court. It follows that the appeal should be dismissed. 23 As to the question of costs, the Minister relies on the affidavit of Nicola Johnson sworn 18 February 2010 in which the sum of $2,400.00 is claimed for costs. This sum is less than the amount recoverable in accordance with Item 43H of Schedule 2 to the Federal Court Rules. I am satisfied on the evidence that the claimed sum is a fair estimate of party-party costs for the professional work to which it relates. 24 The appellant submitted that, in the event that his appeal was unsuccessful and an order for costs was made against him, he would be unable to pay costs in that sum because his financial situation is very poor. That is not a sufficient reason to fix the costs in any other sum or to depart from the usual order that costs should follow the event. 25 The appellant should pay the Minister's costs fixed pursuant to O 62 r 40C(4) in the sum of $2,400.00. I certify that the preceding twenty-eight (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.
SZNUX
Minister for Immigration and Citizenship
[2009] FMCA 1182
(1996) 185 CLR 259
(2001) 205 CLR 507
(2004) 140 FCR 572
(2001) 75 ALJR 982
(2007) 81 ALJR 1190
(2001) 179 ALR 425
(2007) 235 ALR 609
Appeal dismissed. The appellant was ordered to pay the first respondent’s costs fixed at $2,400.00.